Charles A. Kerr, Ii, Petitioner, v. Office of Personnel Management, Respondent, 951 F.2d 1323 (D.C. Cir. 1991)

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U.S. Court of Appeals for the District of Columbia Circuit - 951 F.2d 1323 (D.C. Cir. 1991) Dec. 4, 1991




Upon consideration of the motion for stay pending appeal, the motion to expedite, and the motion to dismiss and the response thereto, it is

ORDERED that the motion to dismiss be granted. As the parties acknowledge, this court does not have jurisdiction to consider this petition for review of a decision of the Office of Personnel Management (OPM). See 5 U.S.C. § 7703(b) (1); Wilder v. Prokop, 846 F.2d 613, 617 (10th Cir. 1988). Transfer of the petition for review to the United States Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1631 is not appropriate because that court could not have exercised jurisdiction over the petition on the day it was filed with this court. See United States v. John C. Grimberg Co., Inc., 702 F.2d 1362, 1374 (Fed. Cir. 1983). The Civil Service Reform Act, 5 U.S.C. § 8301 et seq., authorizes the Federal Circuit to review decisions of the Merit Systems Protection Board (MSPB); that court, however, may not review decisions of OPM directly. See Lindahl v. Office of Personnel Management, 470 U.S. 768, 799 (1985). Because Kerr did not first seek review by the MSPB, the Federal Circuit would not have had jurisdiction over his petition for review on the day it was filed in this court. It is

FURTHER ORDERED that the motion for stay and the motion to expedite be dismissed as moot.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.