Rudolph Martinez, Jr. v. Department of the Army

N OTE: This order is nonprecedential.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 D YK, REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
O R D E R
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: 1 Filed: 09/17/2024

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MARTINEZ v. ARMY 2
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,
I T I S O RDERED T HAT :
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.
September 17, 2024
Date
F OR THE COURT
Case: 24-1866 Document: 16 Page: 2 Filed: 09/17/2024

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