Schultz ex rel. Schultz v. Merit Systems Protection Board

164 F. App'x 990

Opinion

ON MOTION

PER CURIAM.

ORDER

Alexander Schultz moves to dismiss this petition for review subject to reinstatement after his district court case is decided.

Schultz is challenging the Merit Systems Protection Board’s decision in his case in both this court and the United States District Court for the Western District of Pennsylvania. Schultz asserts that discrimination issues are involved in his case. On October 18, 2005, this court ordered that this petition for review would be dismissed unless Schultz informed the court that he had dismissed his district court action challenging the Board’s decision. Schultz has not dismissed his district court action and moves to dismiss his petition here subject to reinstatement. We agree that dismissal is appropriate.

A petitioner may not proceed to challenge the Board’s decision in two different fora. Williams v. Department of the Army, 715 F.2d 1485 (1983) (en banc). Thus, this petition for review must be dismissed and the petition would not be subject to reinstatement.

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Accordingly,

IT IS ORDERED THAT:

(1) Schultz’s motion to dismiss is granted. The petition for review is dismissed.

(2) Each side shall bear its own costs.

If the district court determines that the case is not a mixed case, it could transfer the district court action to this court pursuant to 28 U.S.C. § 1631.