Brandon T. Wiegand v. Department of the Army

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRANDON T. WIEGAND,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2023-1853
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-18-0155-I-2.
______________________
ON MOTION
______________________
Before D YK, CUNNINGHAM , and STARK, Circuit Judges.
CUNNINGHAM , Circuit Judge.
O R D E R
The Department of the Army moves to dismiss this pe-
tition for review for lack of jurisdiction. Brandon T. Wie-
gand opposes the motion, arguing that this court should
exercise jurisdiction or alternatively transfer.
Mr. Wiegand’s petition seeks review of the Merit Sys-
tems Protection Board’s final decision sustaining his
Case: 23-1853 Document: 12 Page: 1 Filed: 10/04/2023

-- 1 of 3 --

WIEGAND v. ARMY 2
removal and rejecting his affirmative defenses of reprisal
for engaging in Equal Employment Opportunity activity
and disability discrimination. Mr. Wiegand’s filings here
indicate that he wishes to pursue his discrimination
claims. See ECF No. 5 at 1–3.*
In general, we have jurisdiction to review “a final order
or final decision of the . . . Board,” 28 U.S.C. § 1295(a)(9),
except for “[c]ases of discrimination subject to the provi-
sions of [5 U.S.C. §] 7702,” 5 U.S.C. § 7703(b)(2). Those
cases, involving appeals to the Board and claims of covered
discrimination, § 7702, belong in district court. Perry v.
Merit Sys. Prot. Bd., 582 U.S. 420, 432 (2017). Mr. Wie-
gand brings such a case, and thus we lack jurisdiction. Mr.
Wiegand argues that we have jurisdiction under a different
provision (§ 7703(c)), but that provision merely provides
the standard for our review while “preserving [the] ‘right
to have the facts subject to trial de novo by the reviewing
court’ in any ‘case of discrimination’ brought under
§ 7703(b)(2),” id. at 429 (citation omitted). There is no
“doubt that the Federal Circuit lacks authority to adjudi-
cate such claims” of discrimination. Id.
Although the Department urges dismissal, we deem it
more appropriate to grant Mr. Wiegand’s alternative re-
quest to transfer this mixed case pursuant to 28 U.S.C.
§ 1631, to the United States District Court for the Middle
District of Pennsylvania, where he has a pending disability
discrimination case, and to leave it to the district court to
address any issues raised by the agency.
* While Mr. Wiegand’s response asks this court to
deem his discrimination claims waived in order to retain
jurisdiction if it determines that transfer is inappropriate,
that request does not amount to an unconditional abandon-
ment of his claims that might otherwise give us jurisdic-
tion.
Case: 23-1853 Document: 12 Page: 2 Filed: 10/04/2023

-- 2 of 3 --

WIEGAND v. ARMY 3
Accordingly,
I T I S O RDERED T HAT :
(1) The motion to dismiss is denied.
(2) This case and all filings are transferred to the
United States District Court for the Middle District of
Pennsylvania.
October 4, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1853 Document: 12 Page: 3 Filed: 10/04/2023

-- 3 of 3 --