Smith v. Navy

Opinion

Case: 25-1229 Document: 13 Page: 1 Filed: 06/20/2025

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________

MICHELLE M. SMITH,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________

2025-1229

______________________

Petition for review of the Merit Systems Protection Board in No. DC-0752-20-0166-I-1.

______________________

Before REYNA, MAYER, and CHEN, Circuit Judges.

PER CURIAM.

ORDER

Michelle M. Smith appealed her removal to the Merit Systems Protection Board and alleged, in relevant part, that a basis for her removal was disability discrimination and retaliation for her prior equal employment opportunity activity. In response to the court’s show cause order, the government urges dismissal of the petition, or in the alternative , transfer to the United States District Court for the District of Columbia. Ms. Smith’s response confirms that

Case: 25-1229 Document: 13 Page: 2 Filed: 06/20/2025

2 SMITH v. NAVY

she seeks review in this court of the “agency’s retaliation against [her] for prior EEO activity.” ECF No. 11 at 1.

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 allegation that a basis for the action was covered discrimination , id. § 7702. 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 employment opportunity activity “falls outside [of the court’s] jurisdictional reach”). Here, Ms. Smith alleged that her removal was based, at least in part, on covered discrimination such that her case belongs in district court. Under such circumstances , we find it appropriate to transfer to the United States District Court for the District of Columbia, where the employment action appears to have occurred. See 28 U.S.C. § 1631. That court may consider, among other things, the agency’s argument regarding the timeliness of the matter.

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

June 20, 2025 Date