Case: 24-1126 Document: 16 Page: 1 Filed: 02/20/2024
NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
ANITA FAY THOMAS, Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________
2024-1126 ______________________
Petition for review of the Merit Systems Protection Board in No. AT-0752-14-0008-I-1. ______________________
ON MOTION ______________________
Before MOORE, Chief Judge, TARANTO and CHEN, Circuit Judges. PER CURIAM. ORDER Anita Fay Thomas petitions this court for review of the final decision of the Merit Systems Protection Board af- firming her removal and rejecting her affirmative defense concerning reprisal for Equal Employment Opportunity (“EEO”) activity. The Department of Veterans Affairs now
Case: 24-1126 Document: 16 Page: 2 Filed: 02/20/2024 2 THOMAS v. DVA
moves to transfer to the United States District Court for the Middle District of Alabama, or in the alternative, to dismiss. According to the Department’s motion, Ms. Thomas indicates that she “would like to continue with [her] pursuit of discrimination.” ECF No. 15 at 1. Federal district courts, not this court, have jurisdiction over “[c]ases of discrimination subject to the provisions of [5 U.S.C.] § 7702,” i.e., cases involving adverse actions ap- pealable to the Board and allegations of covered discrimi- nation. 5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 432 (2017); 5 U.S.C. § 7702(a)(1); Diggs v. Dep’t of Hous. & Urb. Dev., 670 F.3d 1353, 1357 (Fed. Cir. 2011) (holding that the affirmative defense of retaliation for prior EEO activity “falls outside [of the court’s] jurisdic- tional reach”). Because Ms. Thomas is pursuing a case of discrimination here, we grant the motion and transfer pur- suant to 28 U.S.C. § 1631 to the Middle District of Ala- bama, where the employment action occurred. Accordingly, IT IS ORDERED THAT: The motion to transfer is granted to the extent that this case and all transmittals are transferred, pursuant to 28 U.S.C. § 1631, to the United States District Court for the Middle District of Alabama. FOR THE COURT
February 20, 2024 Date