Lope M. Mendez, Petitioner, v. Office of Personnel Management, Respondent, 965 F.2d 1063 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 965 F.2d 1063 (Fed. Cir. 1992)

March 13, 1992

Before RICH, PAULINE NEWMAN and MICHEL, Circuit Judges.


RICH, Circuit Judge.

The Office of Personnel Management (OPM) moves to dismiss Lope M. Mendez's petition for review for lack of jurisdiction. Mendez has not filed a response.

Mendez appealed to the Merit Systems Protection Board from a January 26, 1990 reconsideration decision by OPM denying his application for benefits. On June 26, 1990, the Administrative Judge (AJ) affirmed OPM's reconsideration decision. Mendez petitioned the Board for review and, on November 4, 1991, the Board affirmed-in-part, vacated-in-part, and remanded the case to OPM to make further findings and issue a new reconsideration decision. Mendez petitioned this court for review on December 13, 1991.

In accordance with 28 U.S.C. § 1295(a) (9) this court possesses exclusive jurisdiction "of an appeal from a final order or final decision of the Merit Systems Protection Board (emphasis added)." See Badger-Powhatan v. United States, 808 F.2d 823, 825 (Fed. Cir. 1986) (An order remanding a matter to an administrative agency for further findings and proceedings is not final for purposes of 28 U.S.C. § 1295). Hence, the Board decision from which Mendez seeks review is not yet final and his petition for review must be dismissed.* 



OPM's motion to dismiss is granted.


Mendez may petition for review, if appropriate, after the Board issues a final decision in the future