NOTE: This order is nonprecedential.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 DYK, CUNNINGHAM, and STARK, Circuit Judges.

CUNNINGHAM, Circuit Judge.

O R D E R

The Department of the Army moves to dismiss this petition for review for lack of jurisdiction. Brandon T. Wiegand opposes the motion, arguing that this court should 

exercise jurisdiction or alternatively transfer. 

Mr. Wiegand’s petition seeks review of the Merit Systems Protection Board’s final decision sustaining his 

Case: 23-1853 Document: 12 Page: 1 Filed: 10/04/2023
2 WIEGAND v. ARMY

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 provisions 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. Wiegand 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 adjudicate such claims” of discrimination. Id.

Although the Department urges dismissal, we deem it 

more appropriate to grant Mr. Wiegand’s alternative request 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 abandonment of his claims that might otherwise give us jurisdiction.

Case: 23-1853 Document: 12 Page: 2 Filed: 10/04/2023
WIEGAND v. ARMY 3

Accordingly,

IT IS ORDERED THAT:

(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

FOR THE COURT

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

Case: 23-1853 Document: 12 Page: 3 Filed: 10/04/2023