Lance McDermott v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LANCE MCDERMOTT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1981
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-21-0159-I-1.
______________________
Before P ROST , BRYSON, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s August 19, 2024 order to
show cause, the Merit Systems Protection Board argues for
transfer, and Lance McDermott responds asking this court
to retain jurisdiction.
Mr. McDermott seeks review of an MSPB decision dis-
missing his restoration appeal for lack of jurisdiction. In
his filings with the court, he indicates that he raised claims
of discrimination and retaliation before the MSPB and that
Case: 24-1981 Document: 13 Page: 1 Filed: 10/23/2024

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MCDERMOTT v. MSPB 2
he wishes to continue to pursue those claims on review. See
ECF No. 4 at 3; ECF No. 10-1 at 28; ECF No. 12 at 8–9.
We transfer this case because Mr. McDermott pursues
his discrimination claims and federal district courts, not
this court, have jurisdiction over so-called “mixed cases”:
“[c]ases of discrimination subject to the provisions of [5
U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2), which involve an al-
legation of an action appealable to the MSPB and an alle-
gation 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). That “review route remains
the same when the MSPB types its dismissal of a mixed
case as ‘jurisdictional.’” Perry, 582 U.S. at 423. We agree
with the MSPB that transfer to the United States District
Court for the Western District of Washington, where the
employment action appears to have occurred, is appropri-
ate. See 28 U.S.C. § 1631.
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 Western District of
Washington pursuant to 28 U.S.C. § 1631.
October 23, 2024
Date
F OR THE COURT
Case: 24-1981 Document: 13 Page: 2 Filed: 10/23/2024

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