Aubrey J. Hightower v. United States Postal Service

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AUBREY J. HIGHTOWER,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2024-1895
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-17-0687-I-2.
______________________
ON MOTION
______________________
Before P ROST , BRYSON , and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
Aubrey J. Hightower petitions this court for review of
the Merit Systems Protection Board’s final decision affirm-
ing his removal and rejecting his affirmative defenses, in-
cluding disability discrimination and retaliation for
engaging in equal employment opportunity activity. The
United States Postal Service (“USPS”) moves to waive
Case: 24-1895 Document: 20 Page: 1 Filed: 11/12/2024

-- 1 of 2 --

HIGHTOWER v. USPS 2
Federal Circuit Rule 27(f) and dismiss for lack of jurisdic-
tion. Mr. Hightower opposes the motion.
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, 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 EEO activity
“falls outside [of the court’s] jurisdictional reach”). Here,
Mr. Hightower continues to pursue his allegations that his
removal was the result of covered discrimination, so juris-
diction to review the Board’s decision lies in district court.
Although the USPS urges dismissal over transfer, we
deem it appropriate to transfer, pursuant to 28 U.S.C.
§ 1631, to the United States District Court for the Western
District of Virginia, where the employment action appears
to have occurred, and for that court to address any issues
concerning timeliness.
Accordingly,
I T I S O RDERED T HAT :
The motion is granted to the extent that the matter and
all case filings are transferred to the United States District
Court for the Western District of Virginia pursuant to
28 U.S.C. § 1631.
November 12, 2024
Date
F OR THE COURT
Case: 24-1895 Document: 20 Page: 2 Filed: 11/12/2024

-- 2 of 2 --