Armstrong v. Commerce

Case: 24-1892 Document: 12 Page: 1 Filed: 11/08/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________

JOSEPH ARMSTRONG,

Petitioner v.

DEPARTMENT OF COMMERCE,

Respondent

______________________

2024-1892 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0752-22-0621-I-1.

______________________

Before PROST, BRYSON, and HUGHES, Circuit Judges. PER CURIAM.

ORDER

Joseph Armstrong petitions for review of the Merit Sys- tems Protection Board’s decision affirming his removal and rejecting his affirmative defense of reprisal for equal em- ployment opportunity activity. In response to the court’s show cause order, the Department of Commerce urges transfer to the United States District Court for the District of Columbia. Mr. Armstrong has not responded.

Federal district courts, not this court, have jurisdiction over “[c]ases of discrimination subject to the provisions of Case: 24-1892 Document: 12 Page: 2 Filed: 11/08/2024 2 ARMSTRONG v. COMMERCE [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2), which involve an allegation of an action appealable to the Board and an al- legation that a basis for the action was covered discrimina- tion, including retaliation. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017); 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 equal employ- ment opportunity activity “falls outside [of the court’s] ju- risdictional reach”). Because Mr. Armstrong is pursuing a case of discrimination here, we transfer pursuant to 28 U.S.C. § 1631 to the District Court for the District of Co- lumbia, where the employment action occurred.

Accordingly, IT IS ORDERED THAT:

This matter and all case filings are transferred to the to the United States District Court for the District of Co- lumbia pursuant to 28 U.S.C. § 1631.

FOR THE COURT November 8, 2024

Date