This morning the Federal Circuit released a precedential order in a personnel case appealed from an arbitrator’s decision. In its opinion, the Federal Circuit reversed the arbitrator’s decision, which had upheld the petitioner’s termination, and remanded the case to the arbitrator based on a violation of the petitioner’s due process rights. The Federal Circuit also released nonprecedential opinions in two cases appealed from the Merit Systems Protection Board. Finally, the Federal Circuit released two nonprecedential orders. One dismisses an appeal and one transfers an appeal due to lack of jurisdiction. Here are the introductions to the opinions, text from the order, and a link to the dismissal.

Johnson v. Department of the Air Force (Precedential)

The Department of the Air Force fired Jacob Johnson after he failed a random drug test. Mr. Johnson now petitions this court to review an arbitrator’s decision upholding his termination. We conclude that the Air Force’s deciding officer violated Mr. Johnson’s right to due process by engaging in ex parte communications about Mr. Johnson’s case. As explained below, we reverse and remand for further proceedings.

Johnson v. Merit Systems Protection Board (Nonprecedential)

Mardic Johnson appeals an administrative judge’s decision to dismiss her appeal before the Merit Systems Protection Board. App. 1–9. For the reasons below, we affirm-in-part and vacate-in-part the administrative judge’s decision and remand for further proceedings.

Seneca v. Merit Systems Protection Board (Nonprecedential)

Dean Seneca, an employee of the Centers for Disease Control and Prevention (CDC), which is a component of the Department of Health and Human Services (HHS), applied for a higher level position at another HHS component, the National Institutes of Health (NIH). NIH sent him a letter stating that it had selected him for the position, with appointment to take effect a month later, but within a week of sending that letter, NIH rescinded the promotion offer, well before the effective date of the appointment. Mr. Seneca appealed the promotion rescission to the Merit Systems Protection Board. The Board dismissed Mr. Seneca’s appeal, determining that it lacked jurisdiction to review NIH’s action, which it concluded was a non-selection for a specific position and not a reviewable “suitability action” under 5 C.F.R. pt. 731. Seneca v. Department of Health and Human Services, No. DC-0731-16-0470-I-1, 2016 WL 4088357 (M.S.P.B. July 26, 2016) (Board Opinion) (hereafter cited with page numbers shown at Appx. 1–9). We affirm.

Manuel v. Office of Personnel Management (Nonprecedential Order)

In response to this court’s July 27, 2022, show cause order, the Office of Personnel Management (OPM) urges dismissal for lack of jurisdiction on the ground that the petition is untimely and that in any event this court lacks jurisdiction. Jacqueline R. Manuel opposes dismissal or transfer.

Ms. Manuel seeks review of a decision of the Merit Systems Protection Board that became final on April 15, 2022. This court received Ms. Manuel’s petition for review on June 15, 2022. In her filings before this court, Ms. Manuel indicates that she asserted discrimination claims before the Board and she does not wish to abandon those claims. See ECF No. 9.

We agree with OPM that this court lacks jurisdiction over this case. Where, as here, certain types of discrimination claims were asserted before the Board and the petitioner seeks judicial review of such claims, the appropriate forum for review is federal district court. See 5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Ash v. Off. of Pers. Mgmt., 25 F.4th 1009, 1011 (Fed. Cir. 2022). However, while OPM urges dismissal over transfer because the petition is untimely, we deem it appropriate to transfer, pursuant to 28 U.S.C.§ 1631, to the United States District Court for the Southern District of Texas and for that court to resolve OPM’s timeliness argument.



This petition and all its filings are transferred to the United States District Court for the Southern District of Texas pursuant to 28 U.S.C. § 1631.