Opinion
No. 2007-3291.
November 5, 2007.
Kenneth D. McLean, pro se.
Before NEWMAN, GAJARSA, and DYK, Circuit Judges.
ON MOTION
ORDER
The Department of the Treasury moves to dismiss Kenneth D. McLean's petition for review in McLean v. Department of Treasury, MSPB Docket No. PH-0752-06-0688-I-1, 106 M.S.P.R. 397 ( Initial Decision, March 7, 2007; Final Decision, July 20, 2007) for lack of jurisdiction. McLean opposes.
McLean filed an appeal at the Merit Systems Protection Board challenging his removal from the position of Clerk. During a preconference hearing, the Department's representative, Mihai Muset, indicated that he had a serious medical condition that required immediate testing and treatment and therefore requested that the appeal be dismissed without prejudice for a period of 60 days. According to the Administrative Judge (AJ), McLean did not object to Muset's request. The AJ found good cause to grant Muset's request and dismissed the petition without prejudice to be refiled by May 7, 2007.
On April 30, 2007, McLean filed a petition for review with the full Board. On July 20, 2007, the Board denied McLean's petition for review but construed McLean's petition as a timely refiling of his appeal and forwarded the matter to the Board's Northeastern regional office for further proceedings.
McLean timely appealed to this court, seeking review of the Board's order. The Department argues that this court lacks jurisdiction because the Board has not issued a final order or decision on the merits. We agree.
This court has exclusive jurisdiction "of an appeal from a final order or final decision of the Merit Systems Protection Board." 28 U.S.C. § 1295(a)(9). An order or decision is final if it "put[s] an end to the litigation before the Board." Copelands' Enter. Inc. v. CNV, Inc., 887 F.2d 1065, 1068 (Fed. Cir. 1989) (en banc); see also Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945) (Final decision is one which "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."). "An order remanding a matter to an administrative agency for further proceedings and findings is not final." Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed. Cir. 1986).
Here, the July 20, 2007, Board order remanding McLean's case to the AJ did not end the litigation before the Board and is, therefore, not final. Thus, the court lacks jurisdiction over McLean's petition for review.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) All sides shall bear their own costs.