Malik H. Swinton v. Office of Personnel Management

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MALIK H. SWINTON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2025-1583
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-844E-22-0208-I-2.
______________________
ON MOTION
______________________
Before TARANTO, CUNNINGHAM, and STARK, Circuit
Judges.
PER CURIAM.
O R D E R
Malik H. Swinton filed an appeal to the Merit Systems
Protection Board from a decision of the Office of Personnel
Management (OPM) denying his application for disability
retirement. The Board affirmed OPM’s decision and re-
jected Mr. Swinton’s affirmative defenses of disability
Case: 25-1583 Document: 19 Page: 1 Filed: 08/12/2025

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SWINTON v. OPM 2
discrimination and retaliation. Mr. Swinton then peti-
tioned this court for review of that decision. Because Mr.
Swinton indicated that he wishes to pursue judicial review
of his discrimination claims, this court directed the parties
to show cause why this case should not be transferred to
federal district court. In response, OPM supports transfer
to the United States District Court for the Northern Dis-
trict of Indiana, where Mr. Swinton resides. Mr. Swinton
has not responded. OPM also submits a motion for leave
to submit a corrected response to the show cause order.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
[5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2)—i.e., cases in
which the employee or applicant alleges that a basis for an
action which may be appealed to the Board was discrimi-
nation under a covered statute, id. § 7702. Perry v. Merit
Sys. Prot. Bd., 582 U.S. 420, 437 (2017). That jurisdictional
rule applies to cases alleging a disability retirement deci-
sion was based at least in part on covered discrimination.
See Ash v. OPM, 25 F.4th 1009, 1011 (Fed. Cir. 2022).
Here, Mr. Swinton alleged that the action was based, at
least in part, on covered discrimination such that his case
belongs in district court. Under the circumstances, we find
it appropriate to transfer to the United States District
Court for the Northern District of California, where the rel-
evant employment records may be maintained. See 42
U.S.C. § 2000e-5(f)(3); 28 U.S.C. § 1631.
Accordingly,
IT IS ORDERED THAT:
(1) This matter and all case filings are transferred to
the United States District Court for the Northern District
of California pursuant to 28 U.S.C. § 1631.
Case: 25-1583 Document: 19 Page: 2 Filed: 08/12/2025

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SWINTON v. OPM 3
(2) OPM’s motion for leave to submit a corrected re-
sponse is granted.
August 12, 2025
Date
FOR THE COURT
Case: 25-1583 Document: 19 Page: 3 Filed: 08/12/2025

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