Tysha S. Holmes v. United States Department of the Army; U.s. Merit Systems Protection Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1459
TYSHA S. HOLMES,
Petitioner,
v.
UNITED STATES DEPARTMENT OF THE ARMY; U.S. MERIT SYSTEMS
PROTECTION BOARD,
Respondents.
On Petition for Review of an Order of the Merits Systems Protection Board. (AT-0752-
11-0263-B-4)
Submitted: September 28, 2023 Decided: October 2, 2023
Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Tysha S. Holmes, Petitioner Pro Se. Miles Jarrad Wright, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Katherine Michelle Smith, UNITED
STATES MERIT SYSTEMS PROTECTION BOARD, Washington, D.C., for
Respondents.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tysha S. Holmes seeks review of the Merit Systems Protection Board’s (MSPB)
final decision upholding Holmes’ removal from service and finding that Holmes failed to
prove her race discrimination and whistleblower retaliation affirmative defenses. The
United States Department of the Army (“the Army”) has filed a motion to dismiss Holmes’
petition, and the MSPB has filed a motion to amend the caption to designate the Army as
the sole respondent. Holmes opposes Respondents’ motions and moves for an extension
of time to file her petition for review.
As she did before the MSPB, Holmes argues that discrimination and whistleblower
retaliation were the bases for her removal from service. Holmes has therefore brought a
“mixed case” and may only seek judicial review of the MSPB’s decision “in federal district
court.” Zachariasiewicz v. U.S. Dep’t of Just., 48 F.4th 237, 243 (4th Cir. 2022) (emphasis
added). We therefore grant the Army’s motion to dismiss and dismiss Holmes’ petition
for lack of subject matter jurisdiction. We deny as moot the MSPB’s motion to amend and
Holmes’ motion for extension of time. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DISMISSED

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