The opinion of the court was delivered by: McLaughlin, J.
The plaintiff, Arthur L. Stone, filed this case on April 8, 2009. This case follows a decision by the Merit Systems Protection Board (MSPB) dismissing Stone's claims of arbitrary action and discriminatory retaliation against the Transportation Security Administration (TSA). Stone claimed that he was denied reinstatement to his position as an air marshal in violation of federal statutes and regulations, and as a result of retaliation for his having filed a previous claim of disability discrimination against the TSA. The Administrative Judge dismissed his claims for lack of jurisdiction.
Stone's complaint contains a single count in which he states that the MSPB's decision was arbitrary and capricious and that the TSA's refusal to reinstate him was in violation of Title VII as retaliation for his previous claims of disability discrimination. Compl., ¶¶ 19-22. He asserts that this Court has jurisdiction over his claims as an appeal of the MSPB's decision pursuant to 5 U.S.C. § 7703(b)(2).
The defendant, Secretary Napolitano of the Department of Homeland Security, has moved to dismiss the claim. The defendant states that any dismissal by the MSPB for lack of jurisdiction is appealable only to the United States Court of Appeals for the Federal Circuit. She claims, therefore, that this Court is without jurisdiction to hear the plaintiff's case. The defendant further argues that the Court is without jurisdiction to hear the plaintiff's retaliation claim because he has failed to exhaust his administrative remedies. Finally, the defendant argues that, even if the plaintiff's retaliation claim was ripe for judicial review, the plaintiff fails to state a claim based on substantive discrimination, as opposed to retaliation, and that any such claim is time barred.
The Court finds that it lacks jurisdiction to hear the plaintiff's claims. The United States Court of Appeals for the Federal Circuit has sole jurisdiction over an appeal of a dismissal by the MSPB for lack of jurisdiction.
I. The Plaintiff's Complaints Before the MSPB and this Court
The plaintiff was an air marshal working for the TSA until August 3, 2007, when he was terminated as a result of a medical condition that prevented him from flying. Def.'s Mot., Ex. 1. Plaintiff appealed his removal to the MSPB on August 6, 2007, arguing that his removal was improper because there was not enough evidence that he was unable to perform the essential functions of his job and that his removal was an act of disability discrimination. Id., Ex. 2. This appeal was denied by an Administrative Judge of the MSPB, as was a petition for review of that decision. Id., Exs. 3, 4.
The plaintiff's counsel then wrote to the TSA claiming that the plaintiff had recovered from his illness and asking that the plaintiff be restored to his position as an air marshal.
Id., Ex. 5. By regulation, an employee who has fully recovered within one year of his termination is entitled to immediate and unconditional restoration of his former position or an equivalent position. 5 C.F.R. § 353.301(a). "Fully recovered" is defined by regulation to mean that "compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he or she left or an equivalent one."
The plaintiff alleges that he received no response from the TSA and, therefore, commenced a second appeal, claiming that the failure to restore him was an act of retaliation for making his previous discrimination claim. In her consideration of this appeal, the Administrative Judge noted that the agency had, in fact, responded in a letter stating that it had denied reinstatement because the plaintiff continued to receive worker's compensation benefits. Id., Ex. 7 at 2. This second appeal was denied on September 22, 2008. The Administrative Judge held that jurisdiction over his appeal of the agency's decision could only be established if the appellant provided non-frivolous allegations that 1) he suffered a compensable injury; 2) his workers' compensation benefits were terminated "on the basis that he fully recovered from his injury;" and 3) his termination was substantially related to his injury. Id., Ex. 7 at 4.
The Administrative Judge found that because Stone continued to receive workers compensation payments, he was not "fully recovered" under applicable federal regulations. Id. (citing 5. C.F.R. § 353.102). On that basis, the Administrative Judge held that the MSPB did not have jurisdiction to hear his appeal. Id. A petition for review by the full Board was denied. Id., Ex. 8.
On April 3, 2009, the plaintiff filed a formal complaint with the TSA's Office of Civil Rights and Liberties. Id., Ex. 9. This complaint concerned the "allegation that the agency refused to restore [Mr. Stone] to agency rolls after full recovery from a compensable injury, and that [this refusal] was in reprisal for his prior EEO activity [i.e., his initial appeal of his termination]." Id.
On April 8, 2009, the plaintiff filed his complaint in this Court. The complaint asserts first that the refusal to reinstate the plaintiff was arbitrary, capricious and an abuse of discretion. Compl., ¶ 19. He asserts the same about the MSPB's decision. Id., ¶ 20. He then asserts that the TSA's decision was motivated by discrimination on the basis of disability and in reprisal for his prior complaint. Id., ¶ 21. The discrimination claim is based on a violation of the Rehabilitation Act of 1973, specifically as an act of retaliation for the prior discrimination claim. This claim was also the basis for the plaintiff's second appeal to the ...