Background
Robert E. Perdue petitioned for review of a Merit Systems Protection Board decision dismissing for lack of jurisdiction his claim that he had involuntarily resigned from the Department of Veterans Affairs.
Before the Board, Perdue alleged discrimination and prohibited personnel practices, including retaliation for his Equal Employment Opportunity activities. Responding to the Federal Circuit’s show-cause order, Perdue said he did not wish to abandon those claims. The DVA urged the court to dismiss or transfer the petition.
The Court’s Holding
The Federal Circuit held that it lacked jurisdiction because Perdue’s case combined a claim involving an action allegedly appealable to the Board with allegations of covered discrimination. Under 5 U.S.C. §§ 7702 and 7703(b)(2), judicial review of such mixed cases belongs in federal district court. The court also treated alleged reprisal for filing an EEO complaint as an assertion of covered discrimination.
Rather than dismiss the petition, the court transferred the matter and all case filings under 28 U.S.C. § 1631 to the U.S. District Court for the Northern District of Florida. It concluded that venue was appropriate there because the employment action appeared to have occurred in that district.
Key Takeaways
- The Federal Circuit lacks jurisdiction over an MSPB case when the employee continues to assert covered discrimination claims.
- A claim of retaliation for prior EEO activity qualifies as an assertion of covered discrimination for jurisdictional purposes.
- The court transferred the case to the Northern District of Florida instead of dismissing it.
Why It Matters
The nonprecedential order reinforces that employees seeking review of mixed MSPB cases must proceed in federal district court when they maintain discrimination or EEO-retaliation claims. It also illustrates that transfer under 28 U.S.C. § 1631 may preserve a petition filed in the wrong federal court.