                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 08 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 DAVID M. SHIPP,                                 No. 09-35168

               Plaintiff - Appellant,            D.C. No. 2:08-cv-01460-RAJ

   v.
                                                 MEMORANDUM *
 KATHLEEN SEBELIUS, Secretary,
 Department of Health and Human
 Services,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                                                          **
                            Submitted February 16, 2010


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

GT/Research
       David Matthew Shipp, a former federal employee, appeals pro se from the

district court’s judgment dismissing his action against the Department of Health

and Human Services (“Department”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review for clear error the district court’s factual findings relevant to its

determination that it lacked subject matter jurisdiction, Autery v. United States, 424

F.3d 944, 956 (9th Cir. 2005), and review de novo the district court’s legal

determination, see Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993). We

affirm.

       The district court properly dismissed Shipp’s action for lack of subject

matter jurisdiction because Shipp sought review of a decision of the Merit System

Protection Board (“MSPB”) that did not adjudicate the merits of Shipp’s

discrimination claims against the Department. See id. (“[O]nly the Court of

Appeals for the Federal Circuit can review MSPB decisions in cases that do not

entail discrimination claims[.]”); Sloan v. West, 140 F.3d 1255, 1261-62 (9th Cir.

1998) (discussing importance of uniformity of MSPB-related case law).

       Shipp’s remaining contentions are unpersuasive.

       We deny all pending motions.

       AFFIRMED.




GT/Research                                2                                      09-35168
