Robert M. Smiler v. Social Security Administration

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT M. SMILER,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2026-1199
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-23-0219-I-2.
______________________
Before LOURIE, CHEN, and STARK, Circuit Judges.
STARK, Circuit Judge.
O R D E R
Robert M. Smiler seeks judicial review of a Merit Sys-
tems Protection Board decision affirming his removal from
federal service and finding that Mr. Smiler failed to prove
his claim of disability discrimination. Because Mr. Smiler’s
submissions to this court indicated he wishes to pursue his
discrimination claim, ECF No. 10-5, we directed the parties
to show cause whether this matter should be transferred.
The Social Security Administration responds in favor of
transfer to the United States District Court for the Eastern
Case: 26-1199 Document: 20 Page: 1 Filed: 04/30/2026

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SMILER v. SSA 2
District of Pennsylvania. Mr. Smiler states that he has
filed an action in the Eastern District of Pennsylvania for
review of the Board’s decision1 and requests we maintain
the stay here pending a district court decision as to the
timeliness of that action.
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 al-
legation that a basis for the action was covered discrimina-
tion, § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420,
437 (2017). Mr. Smiler continues to pursue his discrimina-
tion claim in district court; thus, this case is outside of our
jurisdiction to resolve Board appeals. See Williams v. Dep’t
of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (en banc)
(noting “where jurisdiction lies in the district court under
5 U.S.C. § 7703(b)(2), the entire action falls within the ju-
risdiction of that court and this court has no jurisdiction”);
see also Punch v. Bridenstine, 945 F.3d 322, 330–31 (5th
Cir. 2019) (noting that “every court of appeals to consider
the question has prohibited bifurcation”). Pursuant to 28
U.S.C. § 1631, we transfer to the Eastern District of Penn-
sylvania, where the underlying employment action appears
to have occurred and where this case may be coordinated
with Mr. Smiler’s other pending action. In so doing, we ex-
press no opinion as to timeliness.
Accordingly,
1 Smiler v. Bisignano, No. 2:26-cv-01670 (E.D.
Penn.).
Case: 26-1199 Document: 20 Page: 2 Filed: 04/30/2026

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SMILER v. SSA 3
IT IS ORDERED THAT:
This matter and all filings are transferred to the
United States District Court for the Eastern District of
Pennsylvania pursuant to 28 U.S.C. § 1631.
April 30, 2026
Date
FOR THE COURT
Case: 26-1199 Document: 20 Page: 3 Filed: 04/30/2026

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