Andrew Lockhart v. United States Postal Service , 95 F.3d 1168 ( 1996 )

95 F.3d 1168

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Andrew LOCKHART, Petitioner,
v.
UNITED STATES POSTAL SERVICE, Respondent.

No. 96-3252.

United States Court of Appeals, Federal Circuit.

Aug. 20, 1996.

Before RICH, LOURIE, and CLEVENGER, Circuit Judges.

ON MOTION

LOURIE, Circuit Judge.

ORDER

1

On July 1, 1996, this court ordered that, absent objection, Andrew Lockhart's petition for review would be dismissed in 10 days.* Andrew Lockhart objects. The United States Postal Service moves for summary affirmance of the Merit Systems Protection Board's order dismissing the Postal Service's petition for enforcement. Lockhart opposes.

2

On November 6, 1995, the Postal Service filed a petition for enforcement asking the Board to order Lockhart to comply with a settlement agreement. Lockhart submitted evidence that he had petitioned this court for review of the Board's final order concerning the settlement agreement. The Administrative Judge (AJ) issued an order to show cause why the petition for enforcement should not be dismissed as premature, and the Postal Service withdrew its petition. Accordingly, on December 22, 1995, the AJ dismissed the Postal Service's petition for enforcement. Following the Board's denial of his petition for review, Lockhart petitioned this court for review. The Postal Service moves for summary affirmance.

3

We need not address whether summary disposition is warranted. We stated in our July 1, 1996 order that if Lockhart objected to the voluntary dismissal of his petition, he was to respond to the issue whether his petition should not be dismissed on the ground that he was not adversely affected by the Board's order. See 5 U.S.C. § 7703(a)(1) (any employee adversely affected by final order or decision of Board may obtain judicial review of that order or decision). However, Lockhart's arguments do not address this issue. Rather, he appears to argue the merits of his earlier petition for review concerning the merits of the settlement agreement. That petition was dismissed by this court on March 8, 1996 on the basis of Lockhart's motion to voluntarily dismiss. Because Lockhart was not adversely affected by the Board's order dismissing the Postal Service's petition for enforcement, Lockhart may not seek review of the Board's order.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) Lockhart's petition for review is dismissed.

6

(2) The Postal Service's motion for summary affirmance is moot.

7

(3) Each side shall bear its own costs.

*

The court treated Lockhart's "motion to stay the proceedings" as a motion to voluntarily dismiss his petition for review on the ground that he was proceeding elsewhere