Tom Kunau v. Department of Veterans Affairs

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TOM KUNAU,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-2176
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-23-0339-I-1.
______________________
Before P ROST , BRYSON , and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Tom Kunau petitions this court for review of the Merit
Systems Protection Board’s final decision affirming his re-
moval and rejecting his affirmative defense of discrimina-
tion based on gender and race. In response to this court’s
September 17, 2024 show cause order, the Department of
Veterans Affairs argues for dismissal or transfer.
Mr. Kunau has not filed a response.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
Case: 24-2176 Document: 16 Page: 1 Filed: 11/12/2024

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KUNAU v. DVA 2
[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, § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420,
437 (2017). Here, the Board understood Mr. Kunau to al-
lege that his removal was based, at least in part, on race
and gender discrimination, and Mr. Kunau continues to
pursue those claims. Thus, we lack jurisdiction and con-
clude that transfer to the United States District Court for
the District of Utah, where the employment action appears
to have occurred, is appropriate. 28 U.S.C. § 1631.1
Accordingly,
I T I S O RDERED T HAT :
This matter and all case filings are transferred to the
United States District Court for the District of Utah pur-
suant to 28 U.S.C. § 1631.
November 12, 2024
Date
F OR THE COURT
1 The Department of Veterans Affairs may raise its
timeliness arguments, among others, before the district
court.
Case: 24-2176 Document: 16 Page: 2 Filed: 11/12/2024

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