Terry L. Steele v. Department of State

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY L. STEELE,
Petitioner
v.
DEPARTMENT OF STATE,
Respondent
______________________
2026-1610
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-25-4858-I-1.
______________________
ON MOTION
______________________
Before PROST, M AYER, and CUNNINGHAM , Circuit Judges.
PER C URIAM.
O R D E R
The Department of State (“DOS”) moves to dismiss
Terry L. Steele’s petition for review for lack of jurisdiction,
noting he has a pending petition for review with the Merit
Systems Protection Board. Mr. Steele did not respond to
the motion but separately moves to “suspend” the case,
ECF No. 9 at 1. We instead transfer this case.
Case: 26-1610 Document: 11 Page: 1 Filed: 06/30/2026

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STEELE v. DEPARTMENT OF STATE 2
In August 2025, Mr. Steele appealed to the Board chal-
lenging DOS’s decision to indefinitely suspend him. He al-
leged discrimination based on age, sex, and retaliation for
participating in an equal employment opportunity activity.
After the administrative judge affirmed DOS’s suspension
decision, Mr. Steele filed a timely petition for review with
the full Board, which remains pending. Mr. Steele also
filed the present petition at this court on March 31, 2026.
In his filings, Mr. Steele indicates that he seeks review of
his discrimination claims. See ECF No. 7.
Federal district courts, not this court, have jurisdiction
over “mixed cases”—i.e., “[c]ases of discrimination subject
to the provisions of [5 U.S.C. §] 7702,” § 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, 5 U.S.C. § 7702(a). Perry v. Merit Sys. Prot.
Bd., 582 U.S. 420, 425–26, 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, Mr. Steele raised
claims of covered discrimination at the Board, and he con-
tinues to seek review of those claims. Thus, we lack juris-
diction.
Where this court lacks jurisdiction, we shall, if it is in
the interest of justice, transfer the case to an appropriate
court. 28 U.S.C. § 1631. DOS, nonetheless, argues for dis-
missal based on Mr. Steele’s petition pending at the Board.
That petition, however, does not preclude transfer because,
at the time of the present petition, 120 days had passed
since his appeal at the Board and there was no “judicially
reviewable action” given the timely petition at the Board.
5 U.S.C. § 7702(e)(1)(B); see Butler v. West, 164 F.3d 634,
643 (D.C. Cir. 1999). Under the circumstances, we transfer
to the United States District Court for the Eastern District
of Virginia, where the employment action appears to have
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STEELE v. DEPARTMENT OF STATE 3
occurred, and for that court to consider Mr. Steele’s request
to suspend the case.
Accordingly,
IT IS O RDERED THAT:
DOS’s motion, ECF No. 10, is granted to the extent that
this matter and all case filings are transferred to the
United States District Court for the Eastern District of Vir-
ginia pursuant to 28 U.S.C. § 1631.
June 30, 2026
Date
FOR THE C OURT
Case: 26-1610 Document: 11 Page: 3 Filed: 06/30/2026

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