Case: 22-2247 Document: 16 Page: 1 Filed: 11/10/2022

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MICHAEL CORDARO, Petitioner

v.

DEPARTMENT OF DEFENSE, Respondent ______________________

2022-2247 ______________________

Petition for review of the Merit Systems Protection Board in No. NY-0432-18-0217-I-1. ______________________

ON MOTION ______________________

Before HUGHES, WALLACH, and STOLL, Circuit Judges. PER CURIAM. ORDER Michael Cordaro petitions for review of a decision of the Merit Systems Protection Board and moves for leave to pro- ceed in forma pauperis. We determine that this matter should be transferred to the United States District Court for the Western District of New York. Case: 22-2247 Document: 16 Page: 2 Filed: 11/10/2022

2 CORDARO v. DEFENSE

Mr. Cordaro’s mixed case (involving an alleged adverse personnel action appealable to the Board based, at least in part, on a claim of discrimination) has been before this court once before. Previously, Mr. Cordaro filed petitions for review from the same initial decision to the Board and this court. We transferred the case to the Western District of New York. Cordaro v. Dep’t of Def., No. 2019-2073 (Fed. Cir. Aug. 16, 2019). * That court entered judgment against Mr. Cordaro, and he has an appeal pending before the United States Court of Appeals for the Second Circuit. On August 25, 2022, the Board denied Mr. Cordaro’s petition as barred on res judicata grounds in light of the district court’s judgment. Mr. Cordaro now petitions this court for review of the Board’s final decision. Mr. Cordaro’s filings before this court indicate that he wishes to continue to pursue his discrimination claim. See ECF No. 3; ECF No. 4. As we previously explained, only federal district courts have jurisdiction to review a mixed case. See Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Williams v. Dep't of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc); 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.151. We therefore transfer this matter under 28 U.S.C. § 1631 to the Western District of New York. Accordingly,

* Our transfer order noted that the then-pending pe- tition before the Board did not impact the district court’s jurisdiction. See 5 U.S.C. § 7702(e)(1)(B) (allowing an em- ployee to file a civil action if “there is no judicially review- able action” after “the 120th day following the filing of an appeal with the Board under subsection (a)(1)”). Case: 22-2247 Document: 16 Page: 3 Filed: 11/10/2022

CORDARO v. DEFENSE 3

IT IS ORDERED THAT: Pursuant to 28 U.S.C. § 1631, this matter and all trans- mittals are transferred to the United States District Court for the Western District of New York. FOR THE COURT

November 10, 2022 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court