Sloan

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge REINHARDT.

In this appeal, we shall attempt to loosen the jurisdictional Gordian knot formed when Title VII and civil service administrative claims are interlaced. Under the facts presented, we conclude that this appeal must be transferred to the Court of Appeals for the Federal Circuit, but that the Title VII claims are equitably tolled.

I

From 1988 until he lost his job in 1993, Wayne Sloan was employed as an electronics technician by the U.S. Army Corps of Engineers in Camp Zama, Japan under an “Overseas Limited Appointment.” When Sloan was hired at the grade of GS-5, Department of Defense regulations required that Overseas Limited Appointment employees over the grade of GS-6 were limited to a five year employment term. DODR 1400.25-M, ¶4-2.a(l),d.(l). Employees in grades GS-6 or lower were exempt, provided the employee remained at that grade. Id. at ¶ 4.2.2.(e).4. Upon promotion to grade GS-7 or higher, the employee became subject to the five year term limitation, retroactive to his or her hiring date. Id. at 4-2.a.(2). Thus, perhaps inspired by the management theories of Joseph Heller or Scott Adams,…

concurring in part, dissenting in part:

I concur with the majority’s holding that only the Federal Circuit may review MSPB jurisdictional decisions. I also agree with its tolling discussion. I do not agree, however, with the majority’s decision to transfer Sloan’s complaint to the Federal Circuit without first giving him the option to pursue his discrimination claim in the district court.

When an employee’s “mixed case” claim is dismissed by the MSPB for lack of jurisdiction, he has two options with respect to the federal courts. He may appeal the jurisdictional question to the Federal Circuit, 1 or he may forego that appeal, abandon his claim of a violation of civil service rights, and file his discrimination claim directly in the district court. Here, Sloan erroneously combined his two options. He filed a complaint containing two counts in the district court, one consisting of his discrimination claim and one setting forth his civil services claim.

The majority appears to view Sloan’s complaint, as the district court did, as solely seeking review of the MSPB’s jurisdictional decision. Nothing in the complaint, however, suggests that its objective was so limited. While it is…