Annephia M. Proctor v. United States Agency for Global Media

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANNEPHIA M. PROCTOR,
Petitioner
v.
UNITED STATES AGENCY FOR GLOBAL MEDIA,
Respondent
______________________
2024-1906
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0416-I-2.
______________________
Before D YK, REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
O R D E R
The Merit Systems Protection Board affirmed the deci-
sion to remove Annephia M. Proctor from federal employ-
ment. She petitioned this court for review, and her
Statement Concerning Discrimination states that she
raised discrimination claims before the Board, does not
wish to abandon those claims, and has filed an action in
federal district court from the Board’s decision. ECF No. 3.
Responding to this court’s show cause order, the United
Case: 24-1906 Document: 17 Page: 1 Filed: 09/16/2024

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PROCTOR v. UNITED STATES AGENCY FOR GLOBAL MEDIA 2
States Agency for Global Media urges transfer. Ms. Proctor
responds and asks this court to retain jurisdiction.
We transfer this case. Federal district courts, not this
court, have jurisdiction over “[c]ases of discrimination sub-
ject to the provisions of [5 U.S.C. §] 7702,” 5 U.S.C.
§ 7703(b)(2), which involve an allegation of an action ap-
pealable to the Board and an allegation that a basis for the
action was covered discrimination, 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 re-
taliation for prior equal employment opportunity activity
“falls outside [of the court’s] jurisdictional reach”). Here,
Ms. Proctor continues to pursue the allegations she made
before the Board that her removal was the result of covered
discrimination, so jurisdiction to review the Board’s deci-
sion lies in district court, not in this court.
Ms. Proctor states that she “has no intentions of raising
discrimination claims in the United States Court of Ap-
peals for the Federal Circuit.” But she has not abandoned
those claims; in fact, Ms. Proctor is actively litigating them
in her district court proceedings. See Proctor v. U.S.
Agency for Glob. Media, No. 1:24-cf-01635-RC (D.D.C., filed
May 9, 2024). Our cases are clear that she cannot pursue
her claims in both this court and district court: “Congress
did not direct or contemplate bifurcated review of” the per-
sonnel action and discrimination claim(s) raised before the
Board, Williams v. Dep’t of the Army, 715 F.2d 1485, 1490
(Fed. Cir. 1983); see Punch v. Bridenstine, 945 F.3d 322,
330 (5th Cir. 2019) (“When federal employees have discrim-
ination and non-discrimination claims arising from ‘the
same or related facts,’ every court of appeals to consider the
question has prohibited bifurcation.”).
For these reasons, we agree that this case belongs in
district court and that transfer to the United States
Case: 24-1906 Document: 17 Page: 2 Filed: 09/16/2024

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PROCTOR v. UNITED STATES AGENCY FOR GLOBAL MEDIA 3
District Court for the District of Columbia is appropriate
under the circumstances. See 28 U.S.C. § 1631.
Accordingly,
I T I S O RDERED T HAT :
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.
September 16, 2024
Date
F OR THE COURT
Case: 24-1906 Document: 17 Page: 3 Filed: 09/16/2024

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