Case: 23-2439   Document: 58     Page: 1   Filed: 11/07/2024




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                WILLIAM D. MARCUM,
                      Petitioner

                            v.

        MERIT SYSTEMS PROTECTION BOARD,
                      Respondent
                ______________________

                       2023-2439
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DE-0752-21-0188-I-1.
                 ______________________

 PER CURIAM.

ORDER

     Because William D. Marcum asserted before the Merit
 Systems Protection Board that he was forced to resign due
 to discrimination and Mr. Marcum has not elected to aban-
 don his discrimination claim, we transfer. 1



    1  In response to this court’s show cause order, Mr.
 Marcum initially indicated that he was not asking the
Case: 23-2439     Document: 58      Page: 2    Filed: 11/07/2024




 2                                             MARCUM v. MSPB




      Federal district courts, not this court, have jurisdiction
 over “[c]ases of discrimination subject to the provisions of
 [5 U.S.C. §] 7702,” 

(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, including retaliation. Perry v. Merit Sys. Prot. Bd.,
 

, 437 (2017); Diggs v. Dep’t of Hous. & Urb.
 Dev., 

 (Fed. Cir. 2011) (holding that the
 affirmative defense of retaliation for prior EEO activity
 “falls outside [of the court’s] jurisdictional reach”). Here,
 Mr. Marcum alleged that he was forced to resign for pro-
 tected EEO activity, and he continues to pursue that claim.
 We therefore conclude that jurisdiction to review the
 Board’s decision lies in district court, and transfer to the
 United States District Court for the District of Arizona,
 where the employment action appears to have occurred, is
 appropriate. See 

; ECF No. 16 at 2.
     Accordingly,




 court to address his discrimination claim. ECF No. 21-1 at
 1. The court informed Mr. Marcum that if he wished to
 abandon the discrimination claim and proceed in this
 court, he needed to submit a corrected Form 10: Statement
 Concerning Discrimination and an opening brief with no
 arguments or references to his discrimination claim. But
 Mr. Marcum’s corrected Form 10 indicates that he does not
 wish to abandon his discrimination claim. ECF No. 24 at
 3 (checking the box in Section C stating he does not wish to
 abandon his discrimination claim). And his informal open-
 ing brief refers to this case as a “mixed case.” ECF No. 31
 at 1–2 (answers to questions 1 and 2).
Case: 23-2439     Document: 58     Page: 3    Filed: 11/07/2024




 MARCUM v. MSPB                                             3



     IT IS ORDERED THAT:
    This matter and all case filings are transferred to the
 United States District Court for the District of Arizona pur-
 suant to 

.
                                               FOR THE COURT




 November 7, 2024
      Date