Gerald C. Daniels and Vincent W. Jackson, Petitioners, v. United States Postal Service, Respondent, 726 F.2d 723 (Fed. Cir. 1984)

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U.S. Court of Appeals for the Federal Circuit - 726 F.2d 723 (Fed. Cir. 1984) Jan. 17, 1984

Bruce W. Miller, Philadelphia, Pa., was for petitioners.

Richard W. Oehler, Washington, D.C., was for respondent.

Before MARKEY, Chief Judge, and FRIEDMAN and NIES, Circuit Judges.


NIES, Circuit Judge.

Respondent has moved to dismiss this appeal on the ground that this is a "mixed" appeal involving issues going to the merits and an issue of racial discrimination and that jurisdiction to hear an appeal raising an issue of such discrimination is vested exclusively in the district courts Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir. 1983). Respondent's position appears correct. However, this court will retain jurisdiction if an express written statement is made by counsel that the issue of racial discrimination has not been and will not be pursued by a suit in a U.S. District Court and has been abandoned. If the issue of racial discrimination is not abandoned, the case may be transferred to a U.S. District Court pursuant to 28 U.S.C. § 1631.

Accordingly, IT IS ORDERED THAT:

Petitioners file with the court within 15 days of the date hereof either (1) a request for this court to proceed which must be accompanied by the required statement, or (2) a request for transfer to a particular U.S. District Court.

In the absence of a timely response, the appeal is subject to dismissal for lack of prosecution.