Christina McMillin v. Department of Veterans Affairs

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTINA MCMILLIN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1744
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-22-0328-I-1.
______________________
Before CHEN, MAYER , and STOLL , Circuit Judges.
P ER CURIAM .
O R D E R
The Department of Veterans Affairs responds to the
court’s May 25, 2023, show cause order urging dismissal.
Christina McMillin has not responded.
Ms. McMillin appealed her removal to the Merit Sys-
tems Protection Board. On January 4, 2023, an adminis-
trative judge entered a settlement agreement into the
record and dismissed the appeal, stating that the order
would become final as of February 8, 2023. Ms. McMillin
filed a petition for this court’s review of the Board’s
Case: 23-1744 Document: 13 Page: 1 Filed: 08/21/2023

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MCMILLIN v. DVA 2
February 8, 2023, decision, and her filings indicate that she
argued before the Board that her adverse employment ac-
tion was based on discrimination and that she wishes to
continue to pursue that claim. See ECF No. 6.
We lack jurisdiction to review a “mixed case” from the
Board—one in which a federal employee (1) complains of
having suffered a serious adverse personnel action appeal-
able to the Board and (2) attributes the adverse action, in
whole or in part, to bias prohibited by certain federal anti-
discrimination laws. See Harris v. SEC, 972 F.3d 1307,
1317–18 (Fed. Cir. 2020); Perry v. Merit Sys. Prot. Bd., 582
U.S. 420, 426 (2017) (holding that federal district court is
the proper forum for review of mixed cases from the Board);
5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9).
Where we lack jurisdiction, and if it is in the interest of
justice, we shall transfer the case to an appropriate court
where the case “could have been brought at the time it was
filed,” 28 U.S.C. § 1631. Here, we conclude that would be
the United States District Court for the Eastern District of
Texas, where it appears that Ms. McMillin resides and the
employment practice occurred. Although the Department
urges dismissal, we deem it the better course to transfer to
allow the district court to consider any of Ms. McMillin’s
challenges to the final decision.
Accordingly,
I T I S O RDERED T HAT :
Pursuant to 28 U.S.C. § 1631, this case and all trans-
mittals are transferred to the United States District Court
for the Eastern District of Texas.
August 21, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1744 Document: 13 Page: 2 Filed: 08/21/2023

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