PAYNE v. USPS , No. 22-1419 (Fed. Cir. 2022)
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Case: 22-1419 Document: 19 Page: 1 Filed: 04/22/2022 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JOSEPH C. PAYNE, Petitioner v. UNITED STATES POSTAL SERVICE, Respondent ______________________ 2022-1419 ______________________ Petition for review of the Merit Systems Protection Board in No. PH-3443-21-0363-I-1. ______________________ ON MOTION ______________________ Before DYK, REYNA, and CHEN, Circuit Judges. PER CURIAM. ORDER The United States Postal Service (USPS) moves to waive the timing requirement under Federal Circuit Rule 27(f) and to dismiss this petition for review for lack of jurisdiction. Joseph C. Payne responds. On September 21, 2021, Mr. Payne filed an appeal at the Merit Systems Protection Board related to USPS’s Case: 22-1419 Document: 19 2 Page: 2 Filed: 04/22/2022 PAYNE v. USPS failure to promote him in 2008. He raised two claims, one under the Veterans Employment Opportunity Act (VEOA), and the second under the Uniformed Services Employment and Reemployment Rights Act (USERRA). After USPS moved to dismiss and the Board issued show cause orders for each claim, the Board dismissed the VEOA claim in a January 11, 2022 preliminary status conference order on the grounds that his claim was untimely and he failed to establish a basis for equitable tolling. SAppx31. On January 18, 2022, the Board suspended case processing for 30 days to allow the parties to prepare for a hearing on Mr. Payne’s USERRA claim. That order states that the case was to resume on February 17, 2022. SAppx33. While his case was suspended at the Board, Mr. Payne filed the present petition for review. It appears that Mr. Payne’s USERRA claim remains pending, and no initial decision has been issued. This court’s review of Board decisions is limited to final orders or final decisions. See 28 U.S.C. § 1295(a)(9); see also Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009). A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). The administrative judge here has not yet issued an initial decision resolving the entirety of Mr. Payne’s claims. Because there is no final order or final decision, this court currently lacks jurisdiction, and therefore this petition must be dismissed. This order does not prevent Mr. Payne from seeking this court’s review by filing a timely petition after the Board enters a final determination in his case. Accordingly, IT IS ORDERED THAT: Case: 22-1419 PAYNE Document: 19 Page: 3 Filed: 04/22/2022 v. USPS 3 (1) The motion is granted, and the petition is dismissed. (2) All other pending motions are denied as moot. (3) Each side shall bear its own costs. FOR THE COURT April 22, 2022 Date /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court ISSUED AS A MANDATE: April 22, 2022
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