METZ v. MCHUGH , No. 13-3107 (Fed. Cir. 2013)

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Case: 13-3107 Document: 25 Page: 1 Filed: 11/21/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ CORA A. METZ, Petitioner, v. John M. McHugh, SECRETARY, DEPARTMENT OF THE ARMY, Respondent. ______________________ 2013-3107 ______________________ Petition for review of the Merit Systems Protection Board in No. DC0752110154-I-1. ______________________ ON MOTION ______________________ Before NEWMAN, PROST, and REYNA, Circuit Judges. REYNA, Circuit Judge. ORDER The Department of the Army moves to transfer the petition for review to the district court. Cora Metz responds, agreeing the petition should be transferred. Case: 13-3107 Document: 25 2 Page: 2 METZ Filed: 11/21/2013 v. MCHUGH Metz appeals the decision of the United States Equal Employment Opportunity Commission ( EEOC ) concurring with the final decision of the Merit Systems Protection Board finding no discrimination. This court lacks jurisdiction to hear Metz s appeal. If an employee loses her mixed case appeal on the merits of her discrimination claim, she may obtain further review of the adverse decision, either from a district court or from the EEOC and then (if necessary) a district court, but not from this court. Conforto v. Merit Sys. Prot. Bd., 703 F.3d 1111, 1116 (Fed. Cir. 2013) (citing 5 U.S.C. §§ 7702(a)(3), 7703(b)(2); 29 C.F.R. § 1614.303310). Indeed, the EEOC s decision expressly states that Metz has the right to file a civil action in an appropriate United States District Court based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that [she] receive[d] th[e] decision. Accordingly, IT IS ORDERED THAT: (1) The motion is granted and the appeal is transferred to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1631. (2) All pending motions are denied as moot. FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court s25 ISSUED AS A MANDATE: November 21, 2013