Joseph Armstrong v. Department of Commerce

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH ARMSTRONG,
Petitioner
v.
DEPARTMENT OF COMMERCE,
Respondent
______________________
2024-1892
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-22-0621-I-1.
______________________
Before P ROST , BRYSON , and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Joseph Armstrong petitions for review of the Merit Sys-
tems Protection Board’s decision affirming his removal and
rejecting his affirmative defense of reprisal for equal em-
ployment opportunity activity. In response to the court’s
show cause order, the Department of Commerce urges
transfer to the United States District Court for the District
of Columbia. Mr. Armstrong has not responded.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
Case: 24-1892 Document: 12 Page: 1 Filed: 11/08/2024

-- 1 of 2 --

ARMSTRONG v. COMMERCE 2
[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, including retaliation. 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 employ-
ment opportunity activity “falls outside [of the court’s] ju-
risdictional reach”). Because Mr. Armstrong is pursuing a
case of discrimination here, we transfer pursuant to
28 U.S.C. § 1631 to the District Court for the District of Co-
lumbia, where the employment action occurred.
Accordingly,
I T I S O RDERED T HAT :
This matter and all case filings are transferred to the
to the United States District Court for the District of Co-
lumbia pursuant to 28 U.S.C. § 1631.
November 8, 2024
Date
F OR THE COURT
Case: 24-1892 Document: 12 Page: 2 Filed: 11/08/2024

-- 2 of 2 --