Michelle M. Smith v. Department of the Navy

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHELLE M. SMITH,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2025-1229
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0166-I-1.
______________________
Before REYNA, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
O R D E R
Michelle M. Smith appealed her removal to the Merit
Systems Protection Board and alleged, in relevant part,
that a basis for her removal was disability discrimination
and retaliation for her prior equal employment opportunity
activity. In response to the court’s show cause order, the
government urges dismissal of the petition, or in the alter-
native, transfer to the United States District Court for the
District of Columbia. Ms. Smith’s response confirms that
Case: 25-1229 Document: 13 Page: 1 Filed: 06/20/2025

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SMITH v. NAVY 2
she seeks review in this court of the “agency’s retaliation
against [her] for prior EEO activity.” ECF No. 11 at 1.
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), which involve an
allegation of an action appealable to the Board and an al-
legation that a basis for the action was covered discrimina-
tion, id. § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420,
437 (2017); Diggs v. Dep’t of Hous. & Urb. Dev., 670 F.3d
1353, 1357 (Fed. Cir. 2011) (holding that the affirmative
defense of retaliation for prior equal employment oppor-
tunity activity “falls outside [of the court’s] jurisdictional
reach”). Here, Ms. Smith alleged that her removal was
based, at least in part, on covered discrimination such that
her case belongs in district court. Under such circum-
stances, we find it appropriate to transfer to the United
States District Court for the District of Columbia, where
the employment action appears to have occurred. See 28
U.S.C. § 1631. That court may consider, among other
things, the agency’s argument regarding the timeliness of
the matter.
Accordingly,
IT IS ORDERED THAT:
This matter and all case filings are transferred to the
United States District Court for the District of Columbia
pursuant to 28 U.S.C. § 1631.
June 20, 2025
Date
FOR THE COURT
Case: 25-1229 Document: 13 Page: 2 Filed: 06/20/2025

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