Background
John Titre appealed his removal from the Department of Agriculture to the Merit Systems Protection Board. He asserted defenses that included discrimination and retaliation for prior equal employment opportunity activity. The Board affirmed the removal and rejected his defenses.
Titre petitioned the Federal Circuit for review and indicated that he continued to pursue his discrimination and EEO-retaliation claims. The Department moved without opposition to waive Federal Circuit Rule 27(f) and transfer the matter.
The Court’s Holding
The Federal Circuit held that it lacked jurisdiction because Titre’s case combined a challenge to an action 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 explained that retaliation for prior EEO activity also constitutes an assertion of covered discrimination.
The court concluded that transfer under 28 U.S.C. § 1631 was appropriate. It declined the Department’s suggestion to transfer the case to the District of Wyoming based solely on Titre’s address, reasoning that his residence did not establish venue under the applicable statutes. Because the challenged personnel action appeared to have occurred in Utah, the court transferred the matter and all filings to the U.S. District Court for the District of Utah, while noting that the district court remained free to transfer it elsewhere if appropriate.
Key Takeaways
- The Federal Circuit lacks jurisdiction over an MSPB case in which the employee continues to pursue covered discrimination claims.
- A claim of retaliation for prior EEO activity qualifies as a covered-discrimination allegation for purposes of mixed-case jurisdiction.
- Venue was tied to where the alleged personnel action occurred, not merely to the employee’s home address.
Why It Matters
The nonprecedential order reinforces that federal employees seeking review of MSPB decisions must bring mixed cases involving discrimination or EEO retaliation in federal district court rather than the Federal Circuit.
It also illustrates that a transfer court must identify a district where the action could properly have been brought; a petitioner’s address alone does not necessarily establish venue under the federal-sector employment-discrimination scheme.