MCNAIR v. DEPARTMENT OF AGRICULTURE , No. 14-3141 (Fed. Cir. 2014)

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Case: 14-3141 Document: 12 Page: 1 Filed: 09/19/2014 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ SHEILA A. MCNAIR, Petitioner, v. DEPARTMENT OF AGRICULTURE, Respondent. ______________________ 2014-3141 ______________________ Petition for review of the Merit Systems Protection Board in No. DC-0752-14-0385-I-1. ______________________ ON MOTION ______________________ Before O MALLEY, WALLACH, and HUGHES, Circuit Judges. PER CURIAM. ORDER The Department of Agriculture moves to dismiss the petition for lack or jurisdiction. Sheila A. McNair has not responded. McNair petitioned this court for review of a decision of the Merit Systems Protection Board (MSPB) that affirmed her removal. After the initial decision, McNair filed a Case: 14-3141 2 Document: 12 MCNAIR Page: 2 Filed: 09/19/2014 v. DEPARTMENT OF AGRICULTURE petition for review with the Office of the Clerk of the MSPB. The petition remains pending with the MSPB. This court s review of MSPB decisions is limited to final orders or final decisions. See Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361-63 (Fed. Cir. 2009); see also 28 U.S.C. § 1295(a)(9). Because McNair s claims are pending before the MSPB, the order from which she seeks review is not final. See 5 C.F.R. § 1201.113(a) ( The initial decision will not become the Board s final decision if within the time limit for filing . . . any party files a petition for review . . . . ). McNair may, of course, file a notice of appeal after the MSPB disposes of all claims and enters a final decision. Accordingly, IT IS ORDERED THAT: (1) The motion to dismiss is granted. (2) Each side shall bear its own costs. FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court s24 ISSUED AS A MANDATE: September 19, 2014

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