Donna D. Parrish v. Department of Health and Human Services

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONNA D. PARRISH,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2025-1326
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0432-22-0653-B-1.
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
The Department of Health and Human Services
(“HHS”) moves to dismiss Donna D. Parrish’s petition for
review for lack of jurisdiction, citing her pending petition
for review with the Merit Systems Protection Board and
her claims of discrimination raised during the proceedings.
Ms. Parrish responds in opposition and moves for a stay.
We transfer the case.
Case: 25-1326 Document: 15 Page: 1 Filed: 02/28/2025

-- 1 of 3 --

PARRISH v. HHS 2
In September 2022, Ms. Parrish appealed her removal
and denial of her within-grade-increase to the Board, alleg-
ing that a basis for the agency’s action was discrimination
based on race, sex, and disability. After the administrative
judge denied relief, Ms. Parrish filed a petition for review
with this court and separately with the Board, which re-
mains pending. In her filings here, Ms. Parrish indicates
that she continues to seek review of her discrimination
claims. See ECF No. 8.
Federal district courts, not this court, have jurisdiction
over “mixed cases”—i.e., “[c]ases of discrimination subject
to the provisions of [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 allegation that a basis for the action was cov-
ered discrimination, § 7702(a). Perry v. Merit Sys. Prot.
Bd., 582 U.S. 420, 437 (2017). Here, Ms. Parrish raised
claims of covered discrimination during the underlying
proceedings, and she continues to seek review of those
claims. Thus, we lack jurisdiction.1
Where this court lacks jurisdiction, we shall, if it is in
the interest of justice, transfer the case to an appropriate
court. 28 U.S.C. § 1631. HHS argues against transfer be-
cause there has been no final Board decision, but 5 U.S.C.
§ 7702(e)(1)(B) permits Ms. Parrish to bring her mixed case
in district court at this time because “there [has been] no
judicially reviewable action” after “the 120th day following
the filing of [her] appeal with the Board under
1 Ms. Parrish’s pending petition for review before the
Board would also render her petition to this court prema-
ture. See 5 C.F.R. § 1201.113(a); Weed v. Soc. Sec. Admin.,
571 F.3d 1359, 1361–63 (Fed. Cir. 2009).
Case: 25-1326 Document: 15 Page: 2 Filed: 02/28/2025

-- 2 of 3 --

PARRISH v. HHS 3
[§ 7702](a)(1).”2 See Butler v. West, 164 F.3d 634 (D.C.
Cir. 1999). Under the circumstances of this case, we con-
clude transfer to the United States District Court for the
Northern District of Georgia, where the employment action
appears to have occurred, is appropriate.
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 Northern District of
Georgia pursuant to 28 U.S.C. § 1631.
February 28, 2025
Date
F OR THE COURT
2 HHS argues Ivey v. Paulson, 222 F. App’x 815, 819
(11th Cir. 2007), held that “a district court lacked jurisdic-
tion where ‘[t]he MSPB had not issued an appealable deci-
sion,’” ECF No. 6 at 10 (quoting id.), but HHS omits the
rest of the quote—“and there is no evidence that [plain-
tiff’s] case was ‘mixed,’” Ivey, 222 F. App’x at 819. Unlike
in Ivey, Ms. Parrish has brought a mixed case (as HHS con-
tends).
Case: 25-1326 Document: 15 Page: 3 Filed: 02/28/2025

-- 3 of 3 --