Case: 24-1866 Document: 16 Page: 1 Filed: 09/17/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ RUDOLPH MARTINEZ, JR., Petitioner v. DEPARTMENT OF THE ARMY, Respondent ______________________ 2024-1866 ______________________ Petition for review of the Merit Systems Protection Board in No. DE-0752-22-0095-I-1. ______________________ ON MOTION ______________________ Before DYK, REYNA, and CHEN, Circuit Judges.

PER CURIAM.

ORDER In response to this court’s July 18, 2024 order, the De- partment of the Army argues for transfer. Rudolph Mar- tinez, Jr. moves at ECF No. 15 for leave to file his response out of time, asserting that this court has jurisdiction.

The Merit Systems Protection Board affirmed Mr. Mar- tinez’s removal, rejecting his affirmative defense of Case: 24-1866 Document: 16 Page: 2 Filed: 09/17/2024

2 MARTINEZ v. ARMY

disability discrimination. Mr. Martinez petitions this court for review, and his filings indicate that he wishes to continue to pursue his discrimination claim.

We transfer this case. Federal district courts, not this court, have jurisdiction over “[c]ases of discrimination sub- ject to the provisions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2), which involve an allegation of an action ap- pealable to the Board and an allegation that a basis for the action was covered discrimination, 5 U.S.C. § 7702. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). Here, Mr. Martinez continues to pursue the allegation he made before the Board that his removal was the result of covered dis- crimination, so jurisdiction to review the Board’s decision lies in district court. We agree with the Army that transfer to the United States District Court for the District of Colo- rado, where the employment action appears to have oc- curred, is appropriate. See 28 U.S.C. § 1631.

Accordingly, IT IS ORDERED THAT: ECF No. 15 is granted, and this matter and all case fil- ings are transferred to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1631.

FOR THE COURT

September 17, 2024 Date