Clark v. MSPB

Opinion

Case: 24-1501 Document: 19 Page: 1 Filed: 05/03/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

HEATHER CLARK, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1501 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-1221-24-0032-W-1. ______________________

Before CHEN, LINN, and HUGHES, Circuit Judges. PER CURIAM. ORDER In response to this court’s March 15, 2024 show cause order, the Merit Systems Protection Board urges dismissal while Heather Clark urges the court to “remand” “for proper due process, with a new judge” because her case has been “unlawful[ly] stay[ed],” ECF No. 16 at 3, 5. Ms. Clark filed a whistleblower individual right of ac- tion appeal with the Board on October 17, 2023. On Feb- ruary 13, 2024, the administrative judge issued an order denying Ms. Clark’s motion to dismiss based on alleged Case: 24-1501 Document: 19 Page: 2 Filed: 05/03/2024

judicial misconduct, directing the parties by the end of that month to address whether Ms. Clark’s resignation was vol- untary, and to caution Ms. Clark against sending inappro- priate communications to the Board. ECF No. 18 at 24. Ms. Clark appears to seek this court’s review of that order. This court’s jurisdiction is limited to “an appeal from a final order or final decision of the . . . Board.” 28 U.S.C. § 1295(a)(9). “[A]n order is final only when it ends the liti- gation on the merits and leaves nothing for the [tribunal] to do but execute the judgment.” Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). Here, the Board has not finally resolved Ms. Clark’s appeal. Ms. Clark’s reliance on Rule 54(b) of the Federal Rules of Civil Procedure is unavailing because that rule does not apply to the Board, see Fed. R. Civ. P. 1 (noting the rules apply to federal district courts), and, in any event, the Feb- ruary 13, 2024 order did not resolve any claims and was not certified by the administrative judge for immediate ap- peal to the Board. Thus, there has been no final, appeala- ble decision or order. If necessary, Ms. Clark may seek this court’s review of her case and arguments of error(s) after the Board issues a final decision or order in her proceed- ings. Accordingly, IT IS ORDERED THAT: (1) The petition for review is dismissed as premature. (2) Each side shall bear its own costs. FOR THE COURT

May 3, 2024 Date