## Facts

- Arthur Hays, a U.S. Postal Service employee, received a notice of proposed removal in 1985.
- Hays first appealed the proposed removal to the Merit Systems Protection Board (MSPB) as an adverse-action appeal and did not assert discrimination in that MSPB proceeding.
- After initiating the MSPB appeal, Hays filed an agency EEO “mixed-case” complaint alleging discrimination based on race, sex, and physical handicap.
- Under applicable regulations, an employee alleging discrimination tied to an adverse action had to elect between (a) an MSPB mixed-case appeal or (b) an agency EEO mixed-case complaint; the forum first initiated controlled, and the other forum would dismiss.
- The Postal Service dismissed/rejected Hays’s EEO complaint because he had already initiated the MSPB appeal and advised him to raise discrimination allegations in the MSPB case.
- An MSPB presiding official upheld Hays’s removal; Hays did not seek review by the full Board, and the presiding official’s decision became final.
- Hays then filed a civil action in federal district court seeking review of the MSPB decision and asserting discrimination claims, including under the Rehabilitation Act.

## Issues

1. Whether Hays’s case qualified as a “mixed case” permitting district court review, or instead was a non-discrimination MSPB appeal reviewable exclusively in the Federal Circuit.
2. Whether, after finding a lack of subject-matter jurisdiction, the district court should have transferred the action to the Federal Circuit under 28 U.S.C. § 1631 rather than dismissing it.

## Decision

- The Ninth Circuit held that judicial review lay exclusively in the U.S. Court of Appeals for the Federal Circuit because Hays elected the MSPB forum first and failed to present discrimination claims to the MSPB.
- The Ninth Circuit vacated/reversed the district court’s dismissal and remanded with instructions to transfer the case to the Federal Circuit under 28 U.S.C. § 1631.

## Legal Principles

- In adverse-action cases alleging discrimination, a federal employee must elect either an MSPB mixed-case appeal or an agency EEO mixed-case complaint; the first-filed forum controls and the second filing is subject to dismissal.
- When discrimination claims are not raised and preserved in the MSPB proceeding, the resulting final MSPB decision is treated as a standard adverse-action decision for judicial-review purposes, with exclusive review in the Federal Circuit rather than a district court.
- Under 28 U.S.C. § 1631, when a timely filing is made in a federal court lacking jurisdiction and the action could have been brought in another federal court at the time of filing, transfer—rather than dismissal—is generally required when it serves the interest of justice and avoids loss of review due to a forum error.

## Conclusion

The Ninth Circuit concluded that Hays’s failure to raise discrimination before the MSPB left his case within the Federal Circuit’s exclusive review jurisdiction and that the district court, lacking jurisdiction, should have transferred the action under § 1631 to preserve judicial review rather than dismissing it.


Hays v. Postmaster Gen. of U.S., 868 F.2d 328 (9th Cir. 1989)