Case: 12-3204 Document: 32 Page: 1 Filed: 12/20/2012
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN DOE,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2012-3204
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752090404-I-1.
__________________________
ON MOTION
__________________________
ORDER
John Doe moves for a stay of the remand proceedings
ordered by the Merit Systems Protection Board or, in the
alternative, for a writ of mandamus to direct the Board to
reinstate him and to award back pay and attorney fees.
The Department of Justice opposes and moves to dismiss
Doe's petition for review for lack of jurisdiction. Doe
replies and opposes dismissal. The Department of Justice
replies.
Case: 12-3204 Document: 32 Page: 2 Filed: 12/20/2012
JOHN DOE V. DOJ 2
Doe was removed in 2009 from his position as an As-
sistant United States Attorney. On appeal to the full
Board, the Board remanded Doe's removal to the agency
and directed the agency to apply its internal procedures
for Access Review Committee Review of the decision to
withdraw an employee's eligibility for access to classified
information under 28 C.F.R. Part 17. The Board set forth
procedures to be followed on remand, and stated that Doe
could file a new petition for appeal with the regional office
after the agency had informed Doe that it had carried out
the Board's order.
Doe petitioned this court for review and asserts, inter
alia, that he was entitled to an immediate reinstatement
without remand proceedings. He moves to stay those
remand proceedings or to treat his request as a petition
for a writ of mandamus.
On December 10, 2012, the Supreme Court decided
Kloeckner v. Solis, 565 U.S. ---, slip op no. 11-184 (2012).
Neither party addresses that case because of its recent
issuance. In Kloeckner, the Supreme Court held that if a
petitioner claims that an agency action appealable to the
MSPB violates an antidiscrimination statute listed in
5
U.S.C. § 7702(a)(1), the petitioner must seek judicial
review in a district court and not with this court.
Id., slip
op. at 14. Here, the Board's decision states that Doe
raised, inter alia, claims that his removal was due to
disability discrimination and due to retaliation for filing
equal employment opportunity complaints. The Depart-
ment of Justice's motion to dismiss further raises the
jurisdictional concern whether the Board's remand order
is final for purposes of review. See Weed v. Soc. Sec.
Admin.,
571 F.3d 1359 (Fed. Cir. 2009) (court lacked
jurisdiction over petition for review of Board remand
order because it was not a final order). It would appear
based upon the papers submitted that this court lacks
jurisdiction due to the holding of Kloeckner.
Case: 12-3204 Document: 32 Page: 3 Filed: 12/20/2012
3 JOHN DOE V. DOJ
The court determines that further briefing concerning
the jurisdictional issues is required. Doe and the De-
partment of Justice are directed to respond, within 10
days of the date of this order, concerning why this case
should not be dismissed or transferred to a district court
pursuant to
28 U.S.C. § 1631 because of the Kloeckner
holding. Each side's response should not exceed 10 pages.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) Doe and the Department of Justice are directed to
respond, within 10 days of the date of this order, concern-
ing why this case should not be dismissed or transferred
to a district court pursuant to
28 U.S.C. § 1631.
(2) All pending motions are held in abeyance.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s8
