Abdelfatah S. Ellawendy v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ABDELFATAH S. ELLAWENDY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1477
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-18-0471-I-1.
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
P ER CURIAM .
O R D E R
In light of AbdelFatah S. Ellawendy’s Statement Con-
cerning Discrimination and the decision of the Merit Sys-
tems Protection Board, the court directed the parties to
show cause why this case should not be transferred to a
federal district court. The Board’s response to that order
urges the court to dismiss the petition, while Mr.
Ellawendy urges this court to retain jurisdiction.
Federal district courts, not this court, have jurisdiction
over “[c]ases of discrimination subject to the provisions of
Case: 24-1477 Document: 21 Page: 1 Filed: 05/20/2024

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ELLAWENDY v. MSPB 2
[5 U.S.C.] § 7702,” 5 U.S.C. § 7703(b)(2)—i.e., where an em-
ployee has made a non-frivolous allegation regarding an ac-
tion appealable to the Board and that the action was based,
at least in part, on covered discrimination. Perry v. Merit
Sys. Prot. Bd., 582 U.S. 420, 432 (2017).
Here, Mr. Ellawendy alleged before the Board that his
resignation was involuntary and the result of covered dis-
crimination, so jurisdiction to review the Board’s decision
would generally lie in district court. Although 28 U.S.C.
§ 1631 authorizes this court, when it lacks jurisdiction over
the case, to transfer to an appropriate district court, we see
no basis for doing so here at least because we understand
Mr. Ellawendy has sought review of the Board’s decision in
a pending case in the United States District Court for the
Northern District of California. See Ellawendy v.
Wormuth, No. 3:24-cv-00265-AGT (N.D. Cal. Jan. 16,
2024). We therefore dismiss this petition.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition is dismissed.
(2) All pending motions are denied.
(3) Each party shall bear its own costs.
May 20, 2024
Date
F OR THE COURT
Case: 24-1477 Document: 21 Page: 2 Filed: 05/20/2024

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