Case: 23-1853 Document: 12 Page: 1 Filed: 10/04/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BRANDON T. WIEGAND, Petitioner

v.

DEPARTMENT OF THE ARMY, Respondent ______________________

2023-1853 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-0752-18-0155-I-2. ______________________

ON MOTION ______________________

Before DYK, CUNNINGHAM, and STARK, Circuit Judges. CUNNINGHAM, Circuit Judge. ORDER The Department of the Army moves to dismiss this pe- tition for review for lack of jurisdiction. Brandon T. Wie- gand opposes the motion, arguing that this court should exercise jurisdiction or alternatively transfer. Mr. Wiegand’s petition seeks review of the Merit Sys- tems Protection Board’s final decision sustaining his Case: 23-1853 Document: 12 Page: 2 Filed: 10/04/2023

2 WIEGAND v. ARMY

removal and rejecting his affirmative defenses of reprisal for engaging in Equal Employment Opportunity activity and disability discrimination. Mr. Wiegand’s filings here indicate that he wishes to pursue his discrimination claims. See ECF No. 5 at 1–3. * In general, we have jurisdiction to review “a final order or final decision of the . . . Board,” 28 U.S.C. § 1295(a)(9), except for “[c]ases of discrimination subject to the provi- sions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2). Those cases, involving appeals to the Board and claims of covered discrimination, § 7702, belong in district court. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 432 (2017). Mr. Wie- gand brings such a case, and thus we lack jurisdiction. Mr. Wiegand argues that we have jurisdiction under a different provision (§ 7703(c)), but that provision merely provides the standard for our review while “preserving [the] ‘right to have the facts subject to trial de novo by the reviewing court’ in any ‘case of discrimination’ brought under § 7703(b)(2),” id. at 429 (citation omitted). There is no “doubt that the Federal Circuit lacks authority to adjudi- cate such claims” of discrimination. Id. Although the Department urges dismissal, we deem it more appropriate to grant Mr. Wiegand’s alternative re- quest to transfer this mixed case pursuant to 28 U.S.C. § 1631, to the United States District Court for the Middle District of Pennsylvania, where he has a pending disability discrimination case, and to leave it to the district court to address any issues raised by the agency.

* While Mr. Wiegand’s response asks this court to deem his discrimination claims waived in order to retain jurisdiction if it determines that transfer is inappropriate, that request does not amount to an unconditional abandon- ment of his claims that might otherwise give us jurisdic- tion. Case: 23-1853 Document: 12 Page: 3 Filed: 10/04/2023

WIEGAND v. ARMY 3

Accordingly, IT IS ORDERED THAT: (1) The motion to dismiss is denied. (2) This case and all filings are transferred to the United States District Court for the Middle District of Pennsylvania. FOR THE COURT

October 4, 2023 /s/ Jarrett B. Perlow Date Jarrett B. Perlow Clerk of Court