NOTE: This order is nonprecedential.
United States Court of Appea|s for the Federa| Circuit
2009-3280
BRODiE J. FLOOD,
Petitioner,
V.
OFFlCE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in
F’H0831090314-|-1.
ON MOTlON
Before MOORE, Circuit Judge.
0 R D E R
Brodie J. Flood responds to the court’s order directing him to respond whether he
intends to proceed with his petition for review in this court or his petition for review
before the |Vlerit Systems Protection Board and requests that the court appoint pro bono
counsel to represent him. The Office of Personnel Management (OPlV|) moves to
dismiss Flood’s appeal for lack of jurisdiction.
4 Flood filed an appeal seeking review of 0PM’s reconsideration decision reducing
the amount of his Civil Service Retirement System annuity. The administrative judge
(AJ) issued`a decision on June 25, 2009 affirming OPM’s reconsideration decision. The
AJ’s decision indicated that it would become final on Ju|y 3O, 2009 unless Flood filed a
petition for review on that date. Flood filed a petition for review with the Board on
August 18, 2009, beyond the permissible time limit. Flood then filed a petition for review
in this court on September 4, 2009.

,
OPM argues that Flood’s petition seeks review of a nonfinal decision of the AJ.
OPM argues that the AJ's June 25, 2009 is not final based on Flood’s attempt to
proceed simultaneously in both this court and before the Board. We determine that the
June 25 order is a final order, however. The June 25 order became final on July 30,
and subsequent events, including the filing of simultaneous petitions for review in this
court and with the Board, cannot divest a decision of finality Thus, we deny the motion
to dismiss
Because it appeared that Flood was attempting to proceed with his case
simultaneously in this court and before the Board, the court directed him to respond
whether he wished to proceed in this court or with the Board. Although Flood responds
that he does not want to dismiss his Board petition, he further explains that he is
"appealing to this board." We interpret this as a request to proceed with his case in this
court Further, the court notes that the Board denied Flood’s petition for review on
October 5, 2009. Under these circumstances, the court determines that Flood may
proceed with his case in this court
According|y,
lT lS ORDERED THAT:
(1) The motion to dismiss is denied.
a (2) Flood’s brief is due within 30 days of the date of filing of this order,
(3) Flood’s request that the court appoint pro bono counsel is denied.
 FOR THE COURT
,a_ FEB 26 mm lslJan Horba|v
Date Jan Horba|y
C|erk
FlLEI
_ _ _ _ U.s. eoiJl'rrérF APPEiii.s ran
cc: Brodie J. Flood (pro se guide and informal brief form enclosed) THE FED RAi. CiRCurr
A|ex P. Hontos, Esq. FEB  6 2010
s17
2°O9~328° 2 iAiiiioiii3Aii
ciEiiii

