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February 11, 1988

Clarence J. James, Jr.
Daniel Levinson, Maria Johnson and Dennis Devanney, In their official capacities as Members, U.S. Merit Systems Protection Board and Lawrence B. Gibbs, In his official capacity as Commissioner of Internal Revenue U.S. Department of the Treasury Internal Revenue Service, and Clarence Thomas, Fred Alvarez, R. Gaull Silberman and Tony Gallegos, In their official capacities as Members, U.S. Equal Employment Opportunity Commission

The opinion of the court was delivered by: BECHTLE


 Presently before the court are the motions to dismiss pursuant to Fed.R.Civ.P. 12 of defendants Equal Employment Opportunity Commission ("EEOC"), Daniel Levinson ("Levinson"), Maria Johnson ("Johnson"), Dennis Devanney ("Devanney"), and Internal Revenue Service ("IRS") Commissioner Lawrence B. Gibbs. For the reasons stated herein, defendants' motions will be granted and plaintiff's action in mandamus will be dismissed.


 Plaintiff Clarence J. James, Jr. ("plaintiff") a black male, is a former employee of the IRS. He was a computer specialist to the District Director's staff in Wilmington, Delaware, from November 1983 to September 21, 1984. Plaintiff's employment was terminated by the IRS effective September 21, 1984, for omission of information on state forms and falsification of a personal qualification statement. Plaintiff received the notice of proposed termination on September 18, 1984, and sometime between that day and October 12, 1984, he consulted an IRS Equal Employment Opportunity Counselor ("EEO counselor"). *fn1" Plaintiff raised two issues: IRS procedural error in the processing of his termination, and race discrimination.

 On October 10, 1984, plaintiff filed an appeal with the MSPB alleging both the procedural and race issues. Two days later the EEO counselor advised plaintiff that he should process the procedural issue with the MSPB and after the MSPB renders a decision, the race complaint should be filed with the IRS. On December 18, 1984, a MSPB hearing officer conducted a hearing on plaintiff's appeal petition. The MSPB initial decision dated January 18, 1985, was in favor of the IRS with respect to plaintiff's allegations of procedural errors. In dismissing the race claim, the MSPB hearing officer stated the following:

 This decision became final on February 22, 1985, since a petition for review was not filed with the MSPB and the MSPB did not open the case on its own motion.

 Plaintiff received a "Notice of Right to File Discrimination Complaint" on January 25, 1985 from the EEO counselor. On February 20, 1985, plaintiff filed a discrimination complaint with the IRS pursuant to 29 C.F.R. § 1613.214. A letter from the IRS dated April 11, 1985, acknowledged receipt of plaintiff's discrimination complaint as timely. However, on July 10, 1985, the IRS cancelled plaintiff's complaint pursuant to 29 C.F.R. § 1613.405(b) which provides for cancellation of "mixed" complaints. Plaintiff appealed this IRS action to the EEOC on August 28, 1985. On April 17, 1987, after an unfortunate 20 month delay, the EEOC dismissed plaintiff's appeal citing 29 C.F.R. § 1613.405(c) which provides that there are no appeals from agency cancellation of complaints.

 On February 12, 1986, while his appeal of the cancellation of his discrimination complaint by the IRS was on appeal with the EEOC, plaintiff filed several documents with the MSPB: petition for review, motion for waiver of time limits and a request for an extension of time to file a petition for review. In his petition for review plaintiff asked the MSPB to remand the race claim to the IRS pursuant to 29 C.F.R. § 1613.405(d) which provides that MSPB may remand allegations of discrimination to an agency. On July 24, 1987, some 17 months later, the MSPB issued its decision dismissing the petition for review because plaintiff did not show good cause to waive the filing time limit and it declined to remand the race claim to the IRS.

 Two months before this decision plaintiff had instituted suit in this court (May 20, 1987), in the nature of an action in mandamus (28 U.S.C. § 1361). Plaintiff asserts that he has no adequate remedy at law and that defendant federal officers should be compelled:

. . . to discharge ministerial duties and responsibilities which they are bound to perform under § 717 of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-16; the Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1111 (1978); and applicable implementing regulations of each statute as set forth in 29 C.F.R. §§ 1613.201, et seq. and 5 C.F.R. §§ 1200.1, et seq.

 Plaintiff's complaint, para. 1. Plaintiff also requests any other relief which the court deems necessary and appropriate.

 Defendants Levinson, Johnson and Devanney are sued in their official capacities as members of the MSPB. In their motion to dismiss they assert that plaintiff's mandamus action to compel the MSPB to act (Count I) is moot since the MSPB's decision was issued July 24, 1987. Additionally, they aver there is no merit in plaintiff's desire to remand the race discrimination claim to the IRS since the MSPB has no duty to remand and because plaintiff should first appeal ...

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