Anita Fay Thomas v. Department of Veterans Affairs

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANITA FAY THOMAS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1126
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-14-0008-I-1.
______________________
ON MOTION
______________________
Before M OORE, Chief Judge, T ARANTO and CHEN, Circuit
Judges.
P ER CURIAM .
O R D E R
Anita Fay Thomas petitions this court for review of the
final decision of the Merit Systems Protection Board af-
firming her removal and rejecting her affirmative defense
concerning reprisal for Equal Employment Opportunity
(“EEO”) activity. The Department of Veterans Affairs now
Case: 24-1126 Document: 16 Page: 1 Filed: 02/20/2024

-- 1 of 2 --

THOMAS v. DVA 2
moves to transfer to the United States District Court for
the Middle District of Alabama, or in the alternative, to
dismiss. According to the Department’s motion, Ms.
Thomas indicates that she “would like to continue with
[her] pursuit of discrimination.” ECF No. 15 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,” i.e., cases involving adverse actions ap-
pealable to the Board and allegations of covered discrimi-
nation. 5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd.,
582 U.S. 420, 432 (2017); 5 U.S.C. § 7702(a)(1); 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 EEO activity “falls outside [of the court’s] jurisdic-
tional reach”). Because Ms. Thomas is pursuing a case of
discrimination here, we grant the motion and transfer pur-
suant to 28 U.S.C. § 1631 to the Middle District of Ala-
bama, where the employment action occurred.
Accordingly,
I T I S O RDERED T HAT :
The motion to transfer is granted to the extent that this
case and all transmittals are transferred, pursuant to 28
U.S.C. § 1631, to the United States District Court for the
Middle District of Alabama.
February 20, 2024
Date
F OR THE COURT
Case: 24-1126 Document: 16 Page: 2 Filed: 02/20/2024

-- 2 of 2 --