Virgil Rogers v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VIRGIL ROGERS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2016
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-17-0123-I-1.
______________________
Before REYNA, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Having considered the parties’ responses to the court’s
July 24, 2023, order to show cause, we now transfer the
case to the United States District Court for the District of
Columbia.
The parties—and the court—agree that Virgil Rogers
seeks judicial review of a Merit Systems Protection Board
decision in a “[c]ase[] of discrimination subject to the pro-
visions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2), and
Case: 23-2016 Document: 17 Page: 1 Filed: 10/18/2023

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ROGERS v. MSPB 2
that this so-called mixed case belongs in federal district
court, Perry v. Merit Sys. Prot. Bd., 582 U.S. 420 (2017).
Pursuant to 28 U.S.C. § 1631, the court may transfer
the matter to a court where “the action or appeal could have
been brought.” Mr. Rogers requests transfer to the United
States District Court for the Eastern District of Washing-
ton, where he states he currently resides. By contrast, the
Board urges transfer to the United States District Court
for the District of Columbia, where the underlying agency
(Department of Defense) has its principal office.
Because Mr. Rogers pursues a claim of discrimination
under the Civil Rights Act of 1964, this action is governed
by the venue restrictions set forth in 42 U.S.C. § 2000e-5(f).
See 5 U.S.C. § 7703(b)(2) (“Cases of discrimination subject
to the provisions of section 7702 of this title shall be filed
under section 717(c) of the Civil Rights Act of 1964 (42
U.S.C. 2000e–16(c)) . . . .”); 42 U.S.C. § 2000e–16(c) (speci-
fying a federal employee or applicant “may file a civil action
as provided in section 2000e-5”).
That statute sets venue in “any judicial district in the
State in which the unlawful employment practice is alleged
to have been committed, in the judicial district in which the
employment records relevant to such practice are main-
tained and administered, or in the judicial district in which
the aggrieved person would have worked but for the alleged
unlawful employment practice, but if the respondent is not
found within any such district, such an action may be
brought within the judicial district in which the respondent
has his principal office.” § 2000e-5(f)(3).
From the record, the Eastern District of Washington
satisfies none of those conditions. The court will instead
transfer to the District of Columbia, leaving it for that
court to address the proper respondent.
Accordingly,
Case: 23-2016 Document: 17 Page: 2 Filed: 10/18/2023

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ROGERS v. MSPB 3
I T I S O RDERED T HAT :
The petition for review and all of the filings are trans-
mitted to the United States District Court for the District
of Columbia pursuant to 28 U.S.C. § 1631.
October 18, 2023
Date
F OR THE COURT
Case: 23-2016 Document: 17 Page: 3 Filed: 10/18/2023

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