United States District Court, S.D. Ohio, Western Division
ANGELA D. FUERST, Plaintiff,
DEPT OF THE AIR FORCE, Defendant.
DECISION AND ENTRY SUSTAINING DEFENDANT DEPARTMENT OF
THE AIR FORCE'S MOTION TO DISMISS FOR LACK OF
JURISDICTION (DOC. #4); PLAINTIFF'S NOTICE OF APPEAL
(DOC. #1) IS DISMISSED WITHOUT PREJUDICE, SUBJECT TO REFILING
IN A COURT OF COMPETENT JURISDICTION; TERMINATION
H. RICE, UNITED STATES DISTRICT JUDGE
Dr. Angela D. Fuerst ("Plaintiff), a former employee of
Defendant, Department of the Air Force
("Defendant"), appeals from a February 22, 2017,
Initial Decision of the Merit Systems Protection Board
("MSPB" or "Board") upholding
Defendant's November 28, 2014, decision to remove her
from her position with the Air Force Institute of Technology.
Fuerst. v. Dep't of the Air Force, Nos.
CH-0752-15-0187-1-1, CH-0353-15-0193-1-1, 2017 WL 747767
(Merit Sys. Prot. Bd. Feb. 22, 2017). In the decision, the
MSPB's Administrative Law Judge ("ALJ"),
Katherine Beaumont, informed Plaintiff that the Initial
Decision would become a Final Decision if Plaintiff did not
file a Petition for Review before the full MSPB on or before
March 29, 2017. Id. ALJ Beaumont also informed
Plaintiff of her right to seek review of the Initial Decision
"on both your discrimination claims and your other
claims in an appropriate United States district court. You .
. . must file your civil action with the district court no
later than [thirty] calendar days after the date this
decision becomes final. If you choose to file, be very
careful to file on time." Id. (emphasis
added) (citing 5 U.S.C. § 7703(b)(2)). Finally, ALJ
Beaumont informed Plaintiff that she could seek review of her
other claims "by the United States Court of Appeals for
the Federal Circuit or by any court of appeals of competent
jurisdiction. The court of appeals must receive your petition
for review within [sixty] days after the date on which this
decision becomes final." Id. (citing 5 U.S.C.
did not seek review of her petition before the full Board;
consequently, the Initial Decision became the Final Decision
of the MSPB on March 29, 2017. Plaintiff filed a Notice of
Appeal in this Court on May 24, 2017. Doc. #1. The Notice of
Appeal stated that Plaintiff "appeal[s] to the United
States Court of Appeals for the Sixth Circuit from Final
Decision of the Merit Systems Protection Board[, ]"
id., PAGEID #1, but did not specify the ruling or
rulings from the Final Decision that were being appealed.
Defendant was not served with the Notice of Appeal, through
United States Attorney General Jefferson B. Sessions, III,
and Benjamin Glassman, United States Attorney for the
Southern District of Ohio, until November 6, 2017, and
Plaintiff never filed an original Complaint with this Court.
Doc. #3; Doc. #4, PAGEID #7. On December 14, 2017, Defendant
filed a Motion to Dismiss for lack of subject matter
jurisdiction. Doc. #4, PAGEID #5 (citing Fed.R.Civ.P.
12(b)(1)). For the reasons set forth below, Defendant's
Motion is SUSTAINED.
objection that a federal court lacks subject-matter
jurisdiction may be raised by a party, or by a court on its
own initiative, at any stage in the litigation."
Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126
S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Fed.R.Civ.P.
12(b)(1). "[T]he party invoking federal jurisdiction has
the burden to prove that [subject matter] jurisdiction
[exists]." Global Tech., Inc. v. Yubei (XinXiang)
Power Steering Sys. Co., Ltd., 807 F.3d 806, 810 (6th
Cir. 2015). If the Court determines that it lacks
jurisdiction over certain claims, then it must dismiss those
claims. See Ammex, Inc. v. Cox, 351 F.3d 697, 702
(6th Cir. 2003) (quoting Riggs v. Island Creek Coal
Co., 542 F.2d 339, 343 (6th Cir. 1976)) ("parties
cannot waive the requirement of subject matter
Civil Service Reform Act, Whistleblower Protection
Enhancement Act, and All Circuit Review Extension
Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C.
§ 1101 et seq., enacted "a comprehensive,
preemptive system for the review of personnel actions
affecting federal employees and to limit judicial review not
otherwise provided in the statute." Alder v. Tenn.
Valley Authority, No. 00-6503, 43 Fed.Appx. 952, 955
(6th Cir. 2002) (citing U.S. v. Fausto, 484 U.S.
439, 443, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988)). The CSRA
created the MSPB, and invested in it authority to hear
certain grievances brought by federal employees. While an
employee who has received an unfavorable decision from an ALJ
may seek review of that decision before the full MSPB,
"[a]ny employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the
Merit Systems Protection Board may obtain judicial review of
the order or decision." 5 U.S.C. § 7703(a)(1).
a final MSPB decision must be appealed to the U.S. Court of
Appeals for the Federal Circuit within sixty days of the
decision becoming final. 5 U.S.C. § 7703(b)(1)(A).
However, there are two exceptions. First, any appeal
involving alleged discrimination or retaliation in violation
of federal employment statutes is known as a "mixed
case, " and must be appealed to a United States District
Court within thirty days of the decision becoming final.
Kloeckner v. Solis, 568 U.S. 41, 44, 46, 133 S.Ct.
596, 184 L.Ed.2d 533 (citing 5 U.S.C. § 7703(b)(2)).
Second, the Whistleblower Protection Enhancement Act
of 2012 ("WPEA"), Pub. L. 112-199, 126 Stat. 1465,
and the All Circuit Review Extension Act of 2014
("ACREA"), Pub. L. 113-170, 128 Stat. 1894,
permitted a federal employee, between December 27, 2012, and
December 27, 2017, to file an appeal "that raises no
challenge to the Board's disposition of a prohibited
personnel practice[, ]" 5 U.S.C. §
7703(b)(1)(B)-i.e., a pure whistleblower
claim-"in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent
jurisdiction. Notwithstanding any other provision of
law, any petition for review shall be filed within [sixty]
days after the Board issues notice of the final order or
decision of the Board." Id. (emphasis added).
of the nature of a claim, the statutory sub-section under
which the claim is brought, or the federal court in which a
claim is filed, the seeking of judicial review of a final
MSPB decision to an Article Ml Court is considered "the
taking of an appeal." Fedora v. Merit Sys. Prot.
Bd., 848 F.3d 1013, 1015 (quoting Bowles v.
Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d
96 (2007)). Thus, the deadlines set forth in 5 U.S.C. §
7703(b) for filing a claim are "mandatory and
jurisdictional, " and are not subject to equitable
exceptions. Id.; see also Johnson v. United States Postal
Serv., 64 F.3d 233, 238 (6th Cir. 1995) (citing
Glarner v. United States Dep't of Veterans
Affairs, 30 F.3d 697, 701 (6th Cir. 1994)) ("the
doctrine of equitable tolling does not apply to Section
Court Lacks Jurisdiction over Plaintiffs Appeal
Plaintiff's Appeal is Untimely
memorandum in opposition, Plaintiff concedes that her appeal
is a mixed case. Doc. #5, PAGEID #17-18; see also
2017 WL 747767 (Plaintiff claimed disability discrimination
and retaliation by Defendant). Thus, she was required to
appeal the ALJ's decision to this Court within thirty
days of March 29, 2017, the date on which that decision
became a final decision of the MSPB. 5 U.S.C. §
7703(b)(2); 2017 WL 747767. It is undisputed that Plaintiff
took no ...