James R. Welcome v. Raymond E. Mabus ( 2017 )


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  •             Case: 16-17079   Date Filed: 07/07/2017   Page: 1 of 3
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-17079
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:15-cv-00121-MCR-EMT
    JAMES R. WELCOME,
    Plaintiff-Appellant,
    versus
    RAYMOND E. MABUS,
    Secretary of the Navy,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (July 7, 2017)
    Before TJOFLAT, JORDAN and ROSENBAUM , Circuit Judges.
    PER CURIAM:
    Case: 16-17079    Date Filed: 07/07/2017   Page: 2 of 3
    James Welcome appeals the District Court’s grant of the Secretary of the
    Navy’s motion to dismiss, or, in the alternative, for summary judgment, in his
    lawsuit under the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2, and
    the Americans With Disabilities Act (“ADA”), 
    42 U.S.C. § 12112
    (a). Welcome
    argues that the district court erred when it dismissed his complaint on the ground
    that he had waived all of his claims by pursuing an appeal of those claims to the
    Federal Circuit Court of Appeals after the Merit Systems Protection Board
    (“MSPB”) entered an unfavorable ruling.
    We review de novo a district court’s order granting a motion to dismiss.
    McGinley v. Houston, 
    361 F.3d 1328
    , 1330 (11th Cir. 2004).
    If a civil service employee is removed from his position, the employee may
    appeal the removal to the MSPB. 
    5 U.S.C. §§ 7512
    , 7513(d). When the employee
    appeals the removal to the MSPB and asserts that it was based totally or partially
    on race discrimination, he has brought a “mixed case.” See 
    29 C.F.R. § 1614.302
    (a). If the employee asserts a mixed claim before the MSPB and
    receives an adverse ruling, one of the employee’s options is to seek judicial review
    of the MSPB’s decision, through either the Federal Circuit Court of Appeals or the
    federal district court. See 
    5 U.S.C. § 7703
    (a)(1), (b)(1); Chappell v. Chao, 
    388 F.3d 1373
    , 1375 (11th Cir. 2004).
    2
    Case: 16-17079     Date Filed: 07/07/2017    Page: 3 of 3
    If the employee chooses to appeal the personnel claims to the Court of
    Appeals, he abandons his discrimination claims because that Court lacks
    jurisdiction to hear such claims. See 
    5 U.S.C. § 7703
    ; Chappell, 
    388 F.3d at 1374
    .
    Thus, if the employee wants to pursue any type of discrimination claim on appeal,
    he must file a complaint in a United States District Court, as a district court is the
    only forum in which an employee can seek review of both parts of a mixed claim.
    Chappell, 
    388 F.3d at
    1375–76. In short, in appealing the MSPB decision to the
    Federal Circuit Court of Appeals, he waives his right to pursue in that Court not
    only any discrimination claims he raised before the MSPB, but any other
    discrimination claims arising out of the same facts as well. 
    Id. at 1378
    .
    After receiving unfavorable decisions from the MSPB, Welcome chose to
    pursue an appeal in the Federal Circuit, which lacked jurisdiction over his
    discrimination claims. He thereby waived his right to appeal any discrimination
    claims he raised before the MSPB. See Chappell, 
    388 F.3d at
    1375–76, 1378. All
    of the claims he raised in the instant case before the District Court were either
    directly raised before the MSPB, or were based on the facts that gave rise to the
    claims he presented to the MSPB. Therefore, the District Court correctly
    determined that he had waived all claims and dismissed his lawsuit.
    AFFIRMED.
    3
    

Document Info

Docket Number: 16-17079 Non-Argument Calendar

Judges: Tjoflat, Jordan, Rosenbaum

Filed Date: 7/7/2017

Precedential Status: Non-Precedential

Modified Date: 3/1/2024