Heather Clark v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HEATHER CLARK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1501
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-1221-24-0032-W-1.
______________________
Before CHEN, L INN, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s March 15, 2024 show cause
order, the Merit Systems Protection Board urges dismissal
while Heather Clark urges the court to “remand” “for
proper due process, with a new judge” because her case has
been “unlawful[ly] stay[ed],” ECF No. 16 at 3, 5.
Ms. Clark filed a whistleblower individual right of ac-
tion appeal with the Board on October 17, 2023. On Feb-
ruary 13, 2024, the administrative judge issued an order
denying Ms. Clark’s motion to dismiss based on alleged
Case: 24-1501 Document: 19 Page: 1 Filed: 05/03/2024

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CLARK v. MSPB 2
judicial misconduct, directing the parties by the end of that
month to address whether Ms. Clark’s resignation was vol-
untary, and to caution Ms. Clark against sending inappro-
priate communications to the Board. ECF No. 18 at 24.
Ms. Clark appears to seek this court’s review of that order.
This court’s jurisdiction is limited to “an appeal from a
final order or final decision of the . . . Board.” 28 U.S.C.
§ 1295(a)(9). “[A]n order is final only when it ends the liti-
gation on the merits and leaves nothing for the [tribunal]
to do but execute the judgment.” Weed v. Soc. Sec. Admin.,
571 F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). Here,
the Board has not finally resolved Ms. Clark’s appeal.
Ms. Clark’s reliance on Rule 54(b) of the Federal Rules of
Civil Procedure is unavailing because that rule does not
apply to the Board, see Fed. R. Civ. P. 1 (noting the rules
apply to federal district courts), and, in any event, the Feb-
ruary 13, 2024 order did not resolve any claims and was
not certified by the administrative judge for immediate ap-
peal to the Board. Thus, there has been no final, appeala-
ble decision or order. If necessary, Ms. Clark may seek this
court’s review of her case and arguments of error(s) after
the Board issues a final decision or order in her proceed-
ings.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed as premature.
(2) Each side shall bear its own costs.
May 3, 2024
Date
F OR THE COURT
Case: 24-1501 Document: 19 Page: 2 Filed: 05/03/2024

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