Pearlette Saracein Mourning v. Department of Defense

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PEARLETTE SARACEIN MOURNING,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-1371
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-22-0129-I-1.
______________________
ON MOTION
______________________
Before D YK, CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
Pearlette Saracein Mourning filed an appeal with the
Merit Systems Protection Board to challenge her removal,
alleging racial discrimination and retaliation as affirma-
tive defenses. The administrative judge affirmed. Ms.
Mourning then petitioned this court for review. On March
17, 2023, we dismissed for failure to file the required
Case: 23-1371 Document: 12 Page: 1 Filed: 10/05/2023

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MOURNING v. DEFENSE 2
statement concerning discrimination and to pay the dock-
eting fee. On June 1, 2023, Ms. Mourning submitted,
among other things, a motion to proceed in forma pauperis,
her statement concerning discrimination, and her informal
opening brief. The Department of Defense (DOD) now
moves to waive the requirements of Federal Circuit Rule
27(f) and dismiss this petition for lack of jurisdiction. Ms.
Mourning has not responded to that motion.
In her filings before this court, Ms. Mourning indicates
that she does not wish to abandon her discrimination
claims. See ECF No. 10 at 1–3; ECF No. 7 at 2. We have
jurisdiction to review final decisions from the Board, except
in “[c]ases of discrimination subject to the provisions of [5
U.S.C. §] 7702,” 5 U.S.C. §§ 7703(b)(2), (b)(1)(A). Those
cases, which involve appeals to the Board and allegations
of covered discrimination, 5 U.S.C. § 7702(a)(1), belong in
district court. 5 U.S.C. § 7703(b)(2); Perry v. Merit Sys.
Prot. Bd., 582 U.S. 420, 432 (2017); Diggs v. Dep’t of Hous.
& Urb. Dev., 670 F.3d 1353, 1357 (Fed. Cir. 2011). Alt-
hough DOD requests dismissal, we deem it appropriate to
reinstate and to transfer the case, pursuant to 28 U.S.C.
§ 1631, to the United States District Court for the Southern
District of Illinois, where Ms. Mourning resides and where
the employment action occurred.
Accordingly,
I T I S O RDERED T HAT :
(1) The court’s mandate is recalled, the March 17,
2023, dismissal order is vacated, and the petition is rein-
stated.
(2) DOD’s motion, ECF No. 11, is denied.
(3) This case and all filings are transferred to the
United States District Court for the Southern District of
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MOURNING v. DEFENSE 3
Illinois pursuant to 28 U.S.C. § 1631.
October 5, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1371 Document: 12 Page: 3 Filed: 10/05/2023

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