Pamela Messal v. Department of Agriculture

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA MESSAL,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2024-1850
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-20-0137-I-1.
______________________
ON MOTION
______________________
Before D YK, REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s July 24, 2024 order directing
the parties to show cause, the Department of Agriculture
urges transfer while Pamela Messal argues in favor of this
court’s jurisdiction.
Ms. Messal appealed her removal from the U.S. Forest
Service to the Merit Systems Protection Board and alleged,
Case: 24-1850 Document: 13 Page: 1 Filed: 10/01/2024

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MESSAL v. DEPARTMENT OF AGRICULTURE 2
inter alia, sex and disability discrimination. The Board af-
firmed her removal based, in relevant part, on a charge of
being AWOL in March and October 2019. Ms. Messal then
filed this petition seeking review of that decision.
Ms. Messal indicates that she wishes to abandon her
claims of discrimination and proceed before this court.
ECF No. 6 at 3. However, it appears she has a pending
case in the United States District Court for the District of
Nevada against the Chief of the Forest Service for discrim-
ination and requested the court “change [her] AWOL” sta-
tus for March and October 2019, Messal v. Moore, No. 3:24-
cv-122, Dkt. No. 4 at 11 (D. Nev. Mar. 20, 2024). Although
Ms. Messal states that she is in the process of “clarifying
the case before [this court] does not cover what is in the US
District Court lawsuit and the US District Court lawsuit
does not cover what is before [this court],” ECF No. 12 at 3,
5 (Aug. 23, 2024), no amended complaint or similar clarifi-
cation has been filed with that court.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
[5 U.S.C. §] 7702,” § 7703(b)(2), which involve an allegation
of an action appealable to the Board and an allegation that
a basis for the action was covered discrimination, 5 U.S.C.
§ 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437
(2017). A petitioner does not bring a “[c]ase of discrimina-
tion” when she has abandoned her discrimination claim(s),
Harris v. SEC, 972 F.3d 1307, 1318 (Fed. Cir. 2020), but
“Congress did not direct or contemplate bifurcated review
of” the personnel action and discrimination claim(s) raised
before the Board, Williams v. Dep’t of the Army, 715 F.2d
1485, 1490 (Fed. Cir. 1983); see Punch v. Bridenstine, 945
F.3d 322, 330 (5th Cir. 2019) (“When federal employees
have discrimination and non-discrimination claims arising
from ‘the same or related facts,’ every court of appeals to
consider the question has prohibited bifurcation.”).
Case: 24-1850 Document: 13 Page: 2 Filed: 10/01/2024

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MESSAL v. DEPARTMENT OF AGRICULTURE 3
Here, Ms. Messal has not abandoned her discrimina-
tion claims as she is actively litigating such claims in dis-
trict court. Thus, we agree with the Department of
Agriculture that under the present circumstances, this
case belongs in district court. The court therefore will
transfer to the District of Nevada, see 28 U.S.C. § 1631, un-
less, within 30 days from the date of entry of this order,
Ms. Messal files a notice with this court that she has made
a filing in the district court case affirmatively dismissing
any claims overlapping with this matter.
Accordingly,
I T I S O RDERED T HAT :
(1) Unless, within 30 days from the date of entry of this
order, Ms. Messal files a notice with this court demonstrat-
ing that she has made a filing in the district court case af-
firmatively dismissing any claims overlapping with this
matter, this matter and all case filings shall be transferred
to the United States District Court for the District of Ne-
vada pursuant to 28 U.S.C. § 1631.
(2) If Ms. Messal files such a notice, the Department of
Agriculture may file a response no later than 14 days there-
after.
October 1, 2024
Date
F OR THE COURT
Case: 24-1850 Document: 13 Page: 3 Filed: 10/01/2024

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