Proctor v. United States Agency for Global Media

• Court: Court of Appeals for the Federal Circuit
• Decided: September 16, 2024
• Docket: 24-1906
• Status: Unpublished

Opinion

Case: 24-1906 Document: 17 Page: 1 Filed: 09/16/2024

NOTE: This order is nonprecedential.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 DYK, REYNA, and CHEN, Circuit Judges. PER CURIAM. ORDER 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: 2 Filed: 09/16/2024

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: 3 Filed: 09/16/2024

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, IT IS ORDERED THAT: 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. FOR THE COURT

September 16, 2024 Date