Hays v. Postmaster General Of The United State

868 F.2d 328 (9th Cir. 1989)

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Nature of the Case

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Facts

P received a notice of proposed removal from his job. He appealed this decision to the MSPB but did not make any discrimination claims. A few weeks later he filed a formal Equal Employment Opportunity (EEO) complaint, charging discrimination based on race, sex, and physical handicap. Under EEOC regulations, an aggrieved person may file an EEO complaint based on discrimination and nondiscrimination claims or file a mixed case appeal with the MSPB, but may not do both. Whichever is filed first is considered an election to proceed in that forum. The appeal to the MSPB preceded the filing of the EEO complaint. Thus, MSPB's presiding official considering P's appeal correctly determined that the MSPB had jurisdiction. The MSPB upheld P's removal on April 25, 1986. P had 30 days to petition the full MSPB for a review of the decision. On May 3, 1986, the Postal Service notified P that his EEO complaint had been rejected pursuant to regulations that require the rejection of a mixed case complaint when the case had been appealed to the MSPB. P did not attempt to bring his discrimination claims to the attention of the MSPB. The decision became final on May 30, 1986. On June 13, P petitioned the district court for a review of the MSPB's decision and for remedies based on his claim that he had suffered discrimination on account of a mental handicap, in violation of section 501 of the Rehabilitation Act of 1973. The Postmaster (D) moved the court to dismiss the case for lack of subject matter jurisdiction or to transfer it to the United States Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1631. The court dismissed and P appealed.