     Case: 09-31123     Document: 00511117518          Page: 1    Date Filed: 05/20/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 20, 2010

                                     No. 09-31123                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



BEV ORR,

                                                   Plaintiff - Appellant
v.

MERIT SYSTEMS PROTECTION BOARD,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                   2:09-CV-3419


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Bev Orr appeals the district court’s dismissal of her case for lack of subject
matter jurisdiction. Orr was employed as a pharmacist by the Department of
the Army. In 1992, the Army appointed Orr to an overseas position for a twelve-
month term ending July 11, 1993. The Army terminated Orr on July 11, 1993
at the end of the term of employment.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-31123   Document: 00511117518      Page: 2      Date Filed: 05/20/2010

                                  No. 09-31123

      Orr appealed her termination to the Merit Systems Protection Board
(“MSPB”), contending that the Army appointed her to a thirty-six month term,
not a twelve-month term. The MSPB dismissed the appeal, finding that Orr was
appointed to a twelve-month term, and therefore, her termination by the Army
at the end of that term was not an adverse action that was appealable to the
MSPB. Orr did not appeal the Board’s decision to the Court of Appeals for the
Federal Circuit, as was her right. 28 U.S.C. § 1295(a)(9).
      In 1999, Orr filed another appeal with the MSPB. The MSPB dismissed
Orr’s claims, finding that she was collaterally estopped from relitigating whether
her appointment extended past July 11, 1993. Orr appealed to the Federal
Circuit, which affirmed the MSPB’s decision. Orr v. Dep’t of Army, 251 F.3d 170,
2000 WL 1810011 (Fed. Cir. Dec. 11, 2000).
      Now nearly seventeen years after her termination by the Army and more
than nine years after the Federal Circuit’s decision in this matter, Orr for the
third time seeks to litigate her termination. The March 2000 MSPB order,
which is the subject of the instant suit indicated that Orr had 60 days to appeal
to the Federal Circuit. This suit is clearly time barred.
      Furthermore, the district court correctly determined that it lacked subject
matter jurisdiction to hear Orr’s case. We review the district court’s dismissal
for lack of subject matter jurisdiction de novo. See Williams v. Dallas Area
Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001). Pursuant to 28 U.S.C. §
1295(a)(9), the Federal Circuit has exclusive jurisdiction over an appeal from a
final order or final decision of the MSPB. See also Blake v. Dep’t of Air Force,
794 F.3d 170, 172 (5th Cir. 1986). If a case involves a discrimination claim, the
Federal Circuit’s jurisdiction is not exclusive and a federal employee may obtain
de novo review of an MSPB decision in such a “mixed case appeal” by filing a
civil action in federal district court. See Harms v. I.R.S., 321 F.3d 1001, 1005
(10th Cir.), cert. denied, 540 U.S. 858 (2003) (citing 29 C.F.R. § 1614.310(b)).

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                                 No. 09-31123

Although Orr’s pleadings are hardly pellucid, her conclusory assertions that her
termination was motivated by a retaliatory intent and that she intends to secure
a favorable ruling from the EEOC, do not a discrimination claim make.
Accordingly, she was entitled to review only in the Federal Circuit, which she
received.
      Because the district court properly determined that it lacked subject
matter jurisdiction, we AFFIRM the district court’s judgment of dismissal.




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