Fuerst v. Secretary of the Air Force, No. 19-4139 (6th Cir. 2020)Annotate this Case
Fuerst fell at a military base, which left her disabled. She returned to work part-time. The Air Force removed Fuerst from service after determining that her ability to work only part-time was affecting the office’s mission. The Department of Labor subsequently determined that Fuerst was no longer disabled. Fuerst applied to participate in a fast-track reemployment program for civil-service employees who were removed from service because of a disability but have recovered, 5 U.S.C. 8151(b). The Air Force did not place her on the priority reemployment list. Fuerst appealed to the Merit Systems Protection Board, which found that her removal was not improper or motivated by discrimination, but ordered the Air Force to rehire her. The Air Force offered Fuerst two jobs at her pay grade. Fuerst did not accept the offers. The Board ruled that the Air Force had complied. Fuerst appealed to a federal district court.
The Sixth Circuit affirmed the dismissal of the claim for lack of subject matter jurisdiction. Employees must generally appeal Board decisions to the Federal Circuit. Fuerst’s case could not qualify as a “mixed case” within the district court’s jurisdiction; it was not an appeal of an agency's action, but a petition for enforcement, although Fuerst sought to enforce an order issued in a mixed case. In a mixed case, the Board decides "both the issue of discrimination and the appealable action[s].” When Fuerst petitioned for enforcement, the Board had decided those issues already. Fuerst had a chance to ask a district court to review those decisions but did not do so.