Thomas H. Davidson, Jr., Petitioner, v. United States Postal Service, Respondent, 24 F.3d 223 (Fed. Cir. 1994)

Thomas H. Davidson, Jr., appeals the affirmance of his removal from the United States Postal Service for unsatisfactory attendance and failure to adhere to the required work schedule. Before the Merit Systems Protection Board (MSPB), Mr. Davidson asserted a claim of discrimination. In Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir. 1983), this court held that it had no jurisdiction over the merits of a mixed case, i.e., one involving an adverse action and a claim of discrimination. However, a case which was presented to the MSPB as a mixed case will be heard by this court if the petitioner files an explicit waiver of the claim of discrimination. The government argues that simply by appealing to this court, Mr. Davidson has waived his discrimination claim. We disagree. As held in Daniels v. United States Postal Service, 726 F.2d 723, 724 (Fed. Cir. 1984), a waiver of a claim of discrimination must be by an express written statement.

Mr. Davidson filed no statement that he waived his claim of discrimination on the merits. Inappropriately, the waiver he filed indicates he seeks review of the MSPB's dismissal of his case for lack of jurisdiction or untimeliness, issues not involved at this stage of the proceedings.

Accordingly, IT IS ORDERED THAT:

Petitioner 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 appropriate waiver, or (2) a request for transfer to a particular United States district court.

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