`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MICHAEL CORDARO,
`Petitioner
`
`v.
`
`DEPARTMENT OF DEFENSE,
`Respondent
`______________________
`
`2022-2247
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. NY-0432-18-0217-I-1.
`______________________
`
`ON MOTION
`______________________
`
`Before HUGHES, WALLACH, and STOLL, Circuit Judges.
`PER CURIAM.
`
`O R D E R
` Michael Cordaro petitions for review of a decision of the
`Merit Systems Protection Board and moves for leave to pro-
`ceed in forma pauperis. We determine that this matter
`should be transferred to the United States District Court
`for the Western District of New York.
`
`
`
`
`
`
`
`Case: 22-2247 Document: 16 Page: 2 Filed: 11/10/2022
`
`2
`
`
`
`CORDARO v. DEFENSE
`
`Mr. Cordaro’s mixed case (involving an alleged adverse
`personnel action appealable to the Board based, at least in
`part, on a claim of discrimination) has been before this
`court once before. Previously, Mr. Cordaro filed petitions
`for review from the same initial decision to the Board and
`this court. We transferred the case to the Western District
`of New York. Cordaro v. Dep’t of Def., No. 2019-2073 (Fed.
`Cir. Aug. 16, 2019).* That court entered judgment against
`Mr. Cordaro, and he has an appeal pending before the
`United States Court of Appeals for the Second Circuit.
`On August 25, 2022, the Board denied Mr. Cordaro’s
`petition as barred on res judicata grounds in light of the
`district court’s judgment. Mr. Cordaro now petitions this
`court for review of the Board’s final decision. Mr. Cordaro’s
`filings before this court indicate that he wishes to continue
`to pursue his discrimination claim. See ECF No. 3; ECF
`No. 4.
`As we previously explained, only federal district courts
`have jurisdiction to review a mixed case. See Perry v. Merit
`Sys. Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Williams v.
`Dep't of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en
`banc); 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5
`C.F.R. § 1201.151. We therefore transfer this matter under
`28 U.S.C. § 1631 to the Western District of New York.
`Accordingly,
`
`
`
`
`
`* Our transfer order noted that the then-pending pe-
`tition before the Board did not impact the district court’s
`jurisdiction. See 5 U.S.C. § 7702(e)(1)(B) (allowing an em-
`ployee to file a civil action if “there is no judicially review-
`able action” after “the 120th day following the filing of an
`appeal with the Board under subsection (a)(1)”).
`
`
`
`Case: 22-2247 Document: 16 Page: 3 Filed: 11/10/2022
`
`CORDARO v. DEFENSE
`
` 3
`
`IT IS ORDERED THAT:
`
`Pursuant to 28 U.S.C. § 1631, this matter and all trans-
`
`mittals are transferred to the United States District Court
`for the Western District of New York.
`
` FOR THE COURT
`
` /s/ Peter R. Marksteiner
` Peter R. Marksteiner
` Clerk of Court
`
`
`November 10, 2022
` Date
`
`
`
`
`
`
`
`
`
`
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`
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