Swinton v. Opm

Case: 25-1583 Document: 19 Page: 1 Filed: 08/12/2025

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________

MALIK H. SWINTON,

Petitioner v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent ______________________

2025-1583 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-844E-22-0208-I-2.

______________________ ON MOTION ______________________

Before TARANTO, CUNNINGHAM, and STARK, Circuit

Judges.

PER CURIAM.

ORDER

Malik H. Swinton filed an appeal to the Merit Systems Protection Board from a decision of the Office of Personnel Management (OPM) denying his application for disability retirement. The Board affirmed OPM’s decision and re- jected Mr. Swinton’s affirmative defenses of disability Case: 25-1583 Document: 19 Page: 2 Filed: 08/12/2025 2 SWINTON v. OPM discrimination and retaliation. Mr. Swinton then peti- tioned this court for review of that decision. Because Mr. Swinton indicated that he wishes to pursue judicial review of his discrimination claims, this court directed the parties to show cause why this case should not be transferred to federal district court. In response, OPM supports transfer to the United States District Court for the Northern Dis- trict of Indiana, where Mr. Swinton resides. Mr. Swinton has not responded. OPM also submits a motion for leave to submit a corrected response to the show cause order.

Federal district courts, not this court, have jurisdiction over “[c]ases of discrimination subject to the provisions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2)—i.e., cases in which the employee or applicant alleges that a basis for an action which may be appealed to the Board was discrimi- nation under a covered statute, id. § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). That jurisdictional rule applies to cases alleging a disability retirement deci- sion was based at least in part on covered discrimination. See Ash v. OPM, 25 F.4th 1009, 1011 (Fed. Cir. 2022). Here, Mr. Swinton alleged that the action was based, at least in part, on covered discrimination such that his case belongs in district court. Under the circumstances, we find it appropriate to transfer to the United States District Court for the Northern District of California, where the rel- evant employment records may be maintained. See 42 U.S.C. § 2000e-5(f)(3); 28 U.S.C. § 1631.

Accordingly, IT IS ORDERED THAT: (1) This matter and all case filings are transferred to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1631.

Case: 25-1583 Document: 19 Page: 3 Filed: 08/12/2025 SWINTON v. OPM 3

(2) OPM’s motion for leave to submit a corrected re- sponse is granted.

FOR THE COURT August 12, 2025

Date