Case: 23-1000 Document: 19 Page: 1 Filed: 12/23/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT J. MACLEAN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1000
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-22-0590-W-1.
______________________
ON MOTION
______________________
Before DYK, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
ORDER
Robert J. MacLean moves for leave to proceed in forma
pauperis, ECF No. 7, and for an “injunction of the [Merit
Systems Protection] Board’s temporary stay denial,” ECF
No. 2 at 1. The Board moves to dismiss this appeal for lack
of jurisdiction. ECF No. 17. Mr. MacLean opposes.
Case: 23-1000 Document: 19 Page: 2 Filed: 12/23/2022
2 MACLEAN v. DHS
Mr. MacLean has filed two whistleblower individual
right of action (“IRA”) appeals concerning his removal from
the Department of Homeland Security. The first appeal,
filed in December 2019, is currently being adjudicated by
an administrative judge at the Board. In August 2022,
Mr. MacLean filed this separate IRA appeal and sought to
stay the removal action. To “conserve the resources of the
parties” and to “promote administrative efficiency,” ECF
No. 17, Appx3, the administrative judge, on Septem-
ber 26, 2022, dismissed Mr. MacLean’s second IRA appeal
without prejudice subject to automatic re-filing after 60
days from the order. The administrative judge also denied
the motion for a temporary stay of the removal. This peti-
tion followed.
This court lacks jurisdiction where there is no final
Board decision or order to review. See 28 U.S.C.
§ 1295(a)(9); Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361
(Fed. Cir. 2009) (“We have held that the final judgment
rule applies to appeals from the Merit Systems Protection
Board.”). As the Board notes, we have treated dismissals
without prejudice subject to automatic reinstatement and
denials of a stay as non-final decisions of the Board that
are not immediately reviewable. See Strausbaugh v. Merit
Sys. Prot. Bd., 401 F. App’x 524, 526 (Fed. Cir. 2010); Gard-
ner v. Dep’t of Treasury, 64 F.3d 671 (table) (Fed. Cir. 1995)
(rejecting argument that denial of a stay is final and imme-
diately reviewable).
Although Mr. MacLean has not invoked the All Writs
Act, 28 U.S.C. § 1651, with regard to his request for injunc-
tive relief, we may treat his appeal and that motion, in the
alternative, as a request for mandamus relief under § 1651.
Doing so, we do not find mandamus relief to be available.
“As the writ [of mandamus] is one of the most potent weap-
ons in the judicial arsenal, three conditions must be satis-
fied before it may issue”: the petitioner must show (1) there
is “no other adequate means to attain the relief he desires,”
(2) the “right to issuance of the writ is clear and
Case: 23-1000 Document: 19 Page: 3 Filed: 12/23/2022
MACLEAN v. DHS 3
indisputable,” and (3) “the writ is appropriate under the
circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S.
367, 380–81 (2004) (internal quotation marks and citations
omitted). Mr. MacLean can raise his arguments concern-
ing the unlawfulness of his removal or errors in the han-
dling of his appeal before the Board through the regular
review process and therefore has an adequate alternative
means to obtain such relief. Moreover, the United States-
Supreme Court has rejected as a general proposition that
temporary loss of income or reputational damage resulting
from a removal action are sufficient to establish the irrep-
arable harm needed to grant a federal employee temporary
injunctive relief. See Sampson v. Murray, 415 U.S. 61, 90–
91 (1974). In light of that precedent, we also cannot say
that Mr. MacLean has shown a clear and indisputable right
to relief.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for review is dismissed.
(2) All pending motions are denied.
(3) Each side shall bear its own costs.
FOR THE COURT
December 23, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court