`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`GERALD MITCHELL,
`Petitioner
`
`v.
`
`MERIT SYSTEMS PROTECTION BOARD,
`Respondent
`______________________
`
`2023-2152
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in Nos. AT-0831-19-0078-I-1 and AT-844E-13-3694-
`I-1.
`
`______________________
`
`Before DYK, WALLACH, and CUNNINGHAM, Circuit Judges.
`PER CURIAM.
`
`O R D E R
`In response to the court’s December 8, 2023 order to
`
`show cause, the Merit Systems Protection Board urges
`transfer of Gerald Mitchell’s petition for review with re-
`spect to MSPB Docket No. AT-844E-13-3694-I-1 and dis-
`missal with respect to No. AT-0831-19-0078-I-1. Mr.
`Mitchell opposes dismissal and moves for various relief.
`
`In No. AT-844E-13-3694-I-1, Mr. Mitchell challenged
`the Office of Personnel Management’s decision denying
`
`
`
`
`
`
`
`Case: 23-2152 Document: 43 Page: 2 Filed: 03/26/2024
`
`2
`
`
`
`MITCHELL v. MSPB
`
`him disability retirement benefits, alleging discrimination
`on the basis of his disability. In 2013, the administrative
`judge dismissed the appeal for lack of jurisdiction when
`OPM rescinded the challenged decision.
`In 2018, Mr. Mitchell filed No. AT-0831-19-0078-I-1 to
`challenge OPM’s alleged discriminatory and retaliatory
`failure to respond to his requests for information and doc-
`uments related to his disability retirement benefits. In
`April 2019, the Board’s administrative judge dismissed the
`appeal for lack of jurisdiction. Mr. Mitchell then filed sep-
`arate petitions for Board review in both cases.
`On May 1, 2023, the Board joined the two petitions for
`administrative convenience, dismissed the petition as to
`No. AT-844E-13-3694-I-1 as untimely, and denied the peti-
`tion as to No. AT-0831-19-0078-I-1, affirming the dismissal
`in that case. On July 10, 2023, this court received Mr.
`Mitchell’s petition seeking judicial review of the Board’s
`May 1, 2023 decision. Mr. Mitchell’s filings here state that
`he wishes to pursue judicial review of his discrimination
`claims.
`As to No. AT-844E-13-3694-I-1, we agree with the
`Board that we lack jurisdiction. Federal district courts, not
`this court, have jurisdiction over “[c]ases of discrimination
`subject to the provisions of [5 U.S.C.] § 7702,” i.e., “mixed
`cases” involving adverse personnel actions appealable to
`the Board and allegations of covered discrimination.
`5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S.
`420, 432 (2017); Ash v. Off. of Pers. Mgmt., 25 F.4th 1009,
`1011 (Fed. Cir. 2022).
`Given Mr. Mitchell’s ongoing pursuit of discrimination
`claims in No. AT-844E-13-3694-I-1, that case is outside our
`jurisdiction. We conclude that transfer to the United
`States District Court for the District of Columbia is appro-
`priate under 28 U.S.C. § 1631. See 42 U.S.C. § 2000e-5(f)(3)
`(providing that discrimination cases brought pursuant to 5
`
`
`
`Case: 23-2152 Document: 43 Page: 3 Filed: 03/26/2024
`
`MITCHELL v. MSPB
`
` 3
`
`U.S.C. § 7702 “may be brought within the judicial district
`in which the respondent has his principal office.”).
`As to No. AT-0831-19-0078-I-1, we dismiss. Under cur-
`rent precedent, the filing deadline is mandatory and juris-
`dictional. See Fedora v. Merit Sys. Prot. Bd., 848 F.3d
`1013, 1016 (Fed. Cir. 2017). Here, Mr. Mitchell’s petition
`was received outside of that deadline. Even assuming eq-
`uitable tolling is available, Mr. Mitchell has shown no basis
`for tolling here based only on a vague recollection of “some
`technical issue(s) with his computer system and/or printer
`and scanner and/or internet,” or “something of that nature”
`and “difficulty figuring out how to make thing[s] happen
`using the FedEx Office Store equipment.” ECF No. 20 at 1.
`
`Accordingly,
`
`IT IS ORDERED THAT:
`(1) MSPB Docket No. AT-844E-13-3694-I-1 is trans-
`ferred to the United States District Court for the District
`of Columbia pursuant to 28 U.S.C. § 1631.
`(2) This matter is dismissed as to MSPB Docket No.
`AT-0831-19-0078-I-1.
`(3) All pending motions are denied.
`
`
`FOR THE COURT
`
`
`
`
`
`
`
`
`March 26, 2024
` Date
`
`
`
`
`
`
`
`
`
`
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