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WOOD v. REGAN

August 6, 1985

JAMES E. WOOD
v.
DONALD T. REGAN, in his capacity as Secretary of the Treasury



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 Plaintiff, James E. Wood, was employed at the Mint for fifteen years as an operator of a machine which placed newly minted nickels into bags for transport. He was discharged after a metal detector sounded as he left his work station and he was found to have eight newly stricken nickels on his person, five of which were misstrikes and thus potentially especially valuable. Wood appealed his termination to the U.S. Merit System Protection Board (MSPB), filing complaints of racial discrimination and procedural irregularities at the hearing. In the midst of the initial hearing before a presiding official at the MSPB's Philadelphia Office, the Mint cancelled its action and reinstated Mr. Wood to his job with full seniority, pay, and other benefits. It also issued new procedures for the uniform treatment of employees found to possess coinage material without authorization. As a result, the case before the MSPB was dismissed as moot.

 The present action is based on Wood's subsequent petition for attorneys fees. After the MSPB denied the petition and confirmed the denial on review, Wood appealed to this Court. His complaint suggests that 28 U.S.C. § 1343 gives this Court jurisdiction over his claim. That section is not applicable, however, since Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). See also I.M.A.G.E. v. EEOC, 469 F. Supp. 1034, 1037 (D.C. Colo. 1979). However, this Court does have jurisdiction under 5 U.S.C. § 7703. Under this section,

 
any 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.

 § 7703(b)(2) specifies that

 
cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)).

 Wood's petition is subject to section 7702, which sets forth procedural guidelines for handling Title VII allegations raised before the Board, since that section is applicable to an employee who

 
(A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and
 
(B) alleges that a basis for the action was discrimination prohibited by --
 
(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16).

 Wood's decision to appeal to this court rather than to the EEOC does not, as the government suggests, constitute a failure to exhaust administrative remedies that would preclude jurisdiction. Section 7702(3) states that

 
any decision of the Board under paragraph (1) of this subsection shall be a judicially ...

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