William D. Marcum v. Merit Systems Protection Board

N OTE: This order is nonprecedential.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.
______________________
P ER CURIAM .
O R D E R
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: 1 Filed: 11/07/2024

-- 1 of 3 --

MARCUM v. MSPB 2
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), 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.,
582 U.S. 420, 437 (2017); Diggs v. Dep’t of Hous. & Urb.
Dev., 670 F.3d 1353, 1357 (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 28 U.S.C. § 1631; 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: 2 Filed: 11/07/2024

-- 2 of 3 --

MARCUM v. MSPB 3
I T I S O RDERED T HAT :
This matter and all case filings are transferred to the
United States District Court for the District of Arizona pur-
suant to 28 U.S.C. § 1631.
November 7, 2024
Date
F OR THE COURT
Case: 23-2439 Document: 58 Page: 3 Filed: 11/07/2024

-- 3 of 3 --