Miller v. MSPB

Case: 26-1639 Document: 27 Page: 1 Filed: 09/22/2026

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CAROLYN MILLER,

Petitioner v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF DEFENSE,

Intervenor ______________________

2026-1639 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-0752-24-0250-I-1. ______________________

Before DYK, MAYER, and STARK, Circuit Judges.

PER CURIAM.

ORDER

Carolyn Miller seeks review of the Merit Systems Pro- tection Board’s dismissal of her involuntary resignation ap- peal. In her filings, Ms. Miller confirms that she asserted at the Board a claim of retaliation for prior equal employ- ment opportunity activity and that she wishes to pursue that claim. In response to this court’s show cause order, Case: 26-1639 Document: 27 Page: 2 Filed: 09/22/2026

2 MILLER v. MSPB the Board urges transfer to the United States District Court for the Middle District of Georgia. Ms. Miller re- quests transfer if this court lacks jurisdiction. The Depart- ment of Defense did not file a response. We transfer.

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), 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, id. at § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017); see also Diggs v. Dep’t of Hous. & Urb. Dev., 670 F.3d 1353, 1357 (Fed. Cir. 2011) (holding that the af- firmative defense of retaliation for prior equal employment opportunity activity generally “falls outside [of this court’s] jurisdictional reach”). We agree with the Board and Ms. Miller that transfer to the United States District Court for the Middle District of Georgia, where it appears that the employment action occurred and Ms. Miller resides, is appropriate under the circumstances, see 28 U.S.C. § 1631. Accordingly,

IT IS ORDERED THAT:

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

FOR THE COURT

September 22, 2026

Date