Michael Cordaro v. Department of Defense

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL CORDARO,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2022-2247
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0432-18-0217-I-1.
______________________
ON MOTION
______________________
Before H UGHES , WALLACH , and STOLL , Circuit Judges.
P ER CURIAM .
O R D E R
Michael Cordaro petitions for review of a decision of the
Merit Systems Protection Board and moves for leave to pro-
ceed in forma pauperis. We determine that this matter
should be transferred to the United States District Court
for the Western District of New York.
Case: 22-2247 Document: 16 Page: 1 Filed: 11/10/2022

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CORDARO v. DEFENSE 2
Mr. Cordaro’s mixed case (involving an alleged adverse
personnel action appealable to the Board based, at least in
part, on a claim of discrimination) has been before this
court once before. Previously, Mr. Cordaro filed petitions
for review from the same initial decision to the Board and
this court. We transferred the case to the Western District
of New York. Cordaro v. Dep’t of Def., No. 2019-2073 (Fed.
Cir. Aug. 16, 2019).* That court entered judgment against
Mr. Cordaro, and he has an appeal pending before the
United States Court of Appeals for the Second Circuit.
On August 25, 2022, the Board denied Mr. Cordaro’s
petition as barred on res judicata grounds in light of the
district court’s judgment. Mr. Cordaro now petitions this
court for review of the Board’s final decision. Mr. Cordaro’s
filings before this court indicate that he wishes to continue
to pursue his discrimination claim. See ECF No. 3; ECF
No. 4.
As we previously explained, only federal district courts
have jurisdiction to review a mixed case. See Perry v. Merit
Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Williams v.
Dep't of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en
banc); 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5
C.F.R. § 1201.151. We therefore transfer this matter under
28 U.S.C. § 1631 to the Western District of New York.
Accordingly,
* Our transfer order noted that the then-pending pe-
tition before the Board did not impact the district court’s
jurisdiction. See 5 U.S.C. § 7702(e)(1)(B) (allowing an em-
ployee to file a civil action if “there is no judicially review-
able action” after “the 120th day following the filing of an
appeal with the Board under subsection (a)(1)”).
Case: 22-2247 Document: 16 Page: 2 Filed: 11/10/2022

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CORDARO v. DEFENSE 3
I T I S O RDERED T HAT :
Pursuant to 28 U.S.C. § 1631, this matter and all trans-
mittals are transferred to the United States District Court
for the Western District of New York.
November 10, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 22-2247 Document: 16 Page: 3 Filed: 11/10/2022

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