McHugh v. Secretary of Veterans Affairs

Case: 23-1616 Document: 10 Page: 1 Filed: 06/13/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES MCHUGH,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2023-1616
______________________
Petition for review.
______________________
ON MOTION
______________________
Before PROST, REYNA, and STARK, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss for
lack of jurisdiction. The Secretary states that James
McHugh opposes the motion.
Mr. McHugh filed his “notice of appeal,” ECF No. 1-2
at 1, on December 8, 2022, identifying an October 13, 2022,
final agency decision of the Department of Veterans Affairs
Office of Employment Discrimination Complaint
Case: 23-1616 Document: 10 Page: 2 Filed: 06/13/2023
2 MCHUGH v. SECRETARY OF VETERANS AFFAIRS
Adjudication. * The decision stated that Mr. McHugh had
a right to file a civil action within 90 days of receipt.
The Secretary correctly argues that this court lacks ju-
risdiction to review this decision. Cf. 28 U.S.C. § 1295; 38
U.S.C. §§ 502, 7292. However, the Secretary also correctly
notes that pursuant to 42 U.S.C. § 2000e-16(c), Mr.
McHugh could have brought this case in a United States
district court at the time it was filed here. When we lack
jurisdiction, this court shall, pursuant to 28 U.S.C. § 1631,
transfer a civil action, if in the interest of justice, to another
court where it could have been filed. Under the circum-
stances, we conclude that transfer is appropriate and agree
with the Secretary’s uncontradicted contention that the ap-
propriate destination is the United States District Court
for the Southern District of Ohio. See, e.g., ECF No. 1-2 at
2 (noting that the relevant events occurred at a Veterans
Affairs medical center in Cincinnati, Ohio).
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion is granted only to the ex-
tent that this case and all transmittals are transferred pur-
suant to 28 U.S.C. § 1631 to the United States District
Court for the Southern District of Ohio.
* Mr. McHugh’s notice is dated “8/12/2022,” and in-
dicates he seeks review of a decision issued on that date,
ECF No. 1-2 at 1, but he attaches the October 13, 2022,
decision.
Case: 23-1616 Document: 10 Page: 3 Filed: 06/13/2023
MCHUGH v. SECRETARY OF VETERANS AFFAIRS 3
(2) Any other pending motion is denied.
FOR THE COURT
June 13, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Acting Clerk of Court