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NOTE: This order is nonprecedential.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 ju-
risdiction. 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 Page: 2 Filed: 04/22/2022
2 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 con-
ference 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 ini-
tial 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 there-
fore 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 Document: 19 Page: 3 Filed: 04/22/2022
PAYNE v. USPS 3
(1) The motion is granted, and the petition is dis-
missed.
(2) All other pending motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
April 22, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: April 22, 2022
