Case: 24-1332 Document: 14 Page: 1 Filed: 04/12/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CLARENCE EDWARD BALDWIN, Petitioner

v.

DEPARTMENT OF ENERGY, Respondent ______________________

2024-1332 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-315H-20-0077-I-1. ______________________

ON MOTION ______________________

Before CHEN, LINN, and HUGHES, Circuit Judges. PER CURIAM. ORDER On January 31, 2024, this court issued a show cause order directing the parties to address whether this court had jurisdiction. The Department of Energy (“DOE”) re- sponds urging transfer. Clarence Edward Baldwin appears to assert in his motion (ECF No. 12) that this court has ju- risdiction, and he files a corrected statement concerning Case: 24-1332 Document: 14 Page: 2 Filed: 04/12/2024

2 BALDWIN v. ENERGY

discrimination purporting to abandon his discrimination claims. Mr. Baldwin filed an Equal Employment Opportunity (“EEO”) complaint with DOE alleging discriminatory per- sonnel actions including alleged termination. DOE found no discrimination. Mr. Baldwin appealed that decision to the Merit Systems Protection Board, and, on Novem- ber 22, 2019, the Board’s administrative judge issued an initial decision dismissing for lack of jurisdiction, which the Board affirmed. Mr. Baldwin seeks this court’s review of the Board’s decision. Separately, Mr. Baldwin pursued review of the agency’s EEO decision with the Equal Employment Oppor- tunity Commission, which affirmed on July 12, 2021. On October 8, 2021, Mr. Baldwin filed suit in the United States District Court for the District of Columbia, requesting, among other things, an order “directing the Defendant to promote the Plaintiff to the position of GS-13 with back pay and benefits.” Baldwin v. Granholm, No. 21-cv-2646, Dkt. No. 1 at 8 (D.D.C. Oct. 8, 2021). That case remains pend- ing. This court lacks jurisdiction over Mr. Baldwin’s peti- tion for review. 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)—i.e., where an employee has made a non-frivolous allegation re- garding an action appealable to the Board and that the ac- tion was based, at least in part, on covered discrimination. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). Before the Board, Mr. Baldwin pursued discrimination claims raised in his EEO complaint. Now, Mr. Baldwin’s corrected statement concerning discrimination indicates that he “wish[es] to abandon those discrimination claims and only pursue civil-service claims in the Federal Circuit rather than pursu[e] discrimination claims and civil-ser- vice claims in district court,” ECF No. 12-2 at 19–21. Case: 24-1332 Document: 14 Page: 3 Filed: 04/12/2024

BALDWIN v. ENERGY 3

However, Mr. Baldwin has not actually abandoned his dis- crimination claims; he simply seeks to pursue them in his pending district court case instead. That is not permitted. “Congress did not direct or contemplate bifurcated review” under these circumstances, Williams v. Dep’t of Army, 715 F.2d 1485, 1490 (Fed. Cir. 1983) (en banc), so “a petitioner cannot challenge the non-discrimination issues here while challenging the discrimination issues in district court,” Punch v. NASA, No. 2016-1804, ECF No. 28 at 4 (Fed. Cir. Apr. 26, 2017). Under the circumstances, we agree with DOE that we lack jurisdiction because Mr. Baldwin is seeking overlap- ping relief from both this court and the district court. We further agree with DOE that transfer to the United States District Court for the District of Columbia (the district where Mr. Baldwin was employed and where his discrimi- nation claims are pending) is appropriate. See 28 U.S.C. § 1631. Accordingly, IT IS ORDERED THAT: (1) ECF No. 12 is denied. (2) This matter and all its filings are transferred to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1631. FOR THE COURT

April 12, 2024 Date