`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LORING M. CANEY, JR.,
`Petitioner
`
`v.
`
`DEPARTMENT OF THE TREASURY,
`Respondent
`______________________
`
`2022-2162
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. BN-0752-87-0110-I-1.
`______________________
`
`ON MOTION
`______________________
`
`PER CURIAM.
`
`O R D E R
`The Department of the Treasury (Treasury) moves to
`
`dismiss. Loring M. Caney, Jr. opposes. We conclude that
`we lack jurisdiction and therefore grant the motion.
`
`From the parties’ submissions, it appears that Mr.
`Caney was terminated from employment at Treasury and
`his appeal related to that action was dismissed by the
`
`
`
`
`
`
`
`Case: 22-2162 Document: 13 Page: 2 Filed: 12/23/2022
`
`2
`
`
`
`CANEY v. TREASURY
`
`Merit Systems Protection Board in May 1991.1 In March
`2022, Mr. Caney submitted what he characterizes as “new
`evidence” to the Board. ECF No. 12 at 3. On April 21, 2022,
`the Acting Clerk of the Board informed Mr. Caney by letter
`that his submission was being construed as a request for
`reconsideration of the Board’s 1991 order and that the
`Board’s regulations did not provide for further review.
`On August 23, 2022, this court received from Mr.
`Caney a petition for review. In that petition, Mr. Caney
`states that his review request is “not based on the merits
`of either my termination from employment; or the merits
`of my request for review by the MSPB” but rather the
`Clerk’s April 21, 2022 letter, ECF No. 1 at 1. He has since
`confirmed that scope of requested review in his response to
`Treasury’s motion to dismiss. See ECF No. 12 at 1 (noting
`that Mr. Caney is “not challenging the merits of [his] ter-
`mination from employment but rather the propriety of the
`Board’s letter of April 21, 2022.”).
`The court lacks jurisdiction to hear Mr. Caney’s appeal
`from the April 21, 2022, letter. Even if that letter qualified
`as a decision of the Board that could be appealed to this
`court under 28 U.S.C. § 1295(a)(9), the petition would
`nonetheless be untimely.2 Section 7703(b)(1)(A) mandates
`that a petition “shall be filed within 60 days after the Board
`issues notice of the final order or decision of the Board.”
`This deadline is jurisdictional and not subject to equitable
`
`It appears that Mr. Caney filed several petitions
`1
`with the Board for enforcement of a settlement agreement,
`but Mr. Caney’s petition before this court does not seek re-
`view concerning these separate petitions for enforcement.
`
`
`2 We note that an attempt to challenge the Board’s
`1991 decision would also be untimely.
`
`
`
`
`Case: 22-2162 Document: 13 Page: 3 Filed: 12/23/2022
`
`CANEY v. TREASURY
`
` 3
`
`tolling. See Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013,
`1016 (Fed. Cir. 2017). And here, Mr. Caney did not file his
`petition within 60 days from the date of the April 21, 2022,
`letter.
`Mr. Caney has not identified any other appealable
`Board decision to this court. In that regard, we note that
`Mr. Caney sent a second letter to the Board on May 2, 2022,
`that the Acting Clerk of the Board, on September 6, 2022,
`construed as a “request for reconsideration” and again in-
`formed Mr. Caney that the Board’s regulations did not pro-
`vide for further review. ECF No. 12 at 6. Precedent is clear
`that a letter from the Clerk of the Board denying a repeti-
`tive request to reopen a case “is not a final order or final
`decision” for purposes of section 1295(a)(9) but rather is
`“merely an administrative response” from the Clerk “per-
`forming only a ministerial function.” Haines v. Merit Sys.
`Prot. Bd., 44 F.3d 998, 1000 (Fed. Cir. 1995); see Amara v.
`Cigna Corp., 2022 WL 16847274, Slip Op. at 21 (2d Cir.
`Nov. 10, 2022) (“The Supreme Court has held that we lack
`jurisdiction over appeals from ministerial orders.”); see also
`Gossage v. Merit Sys. Prot. Bd., No. 2020-2171, 2021 WL
`4521073 (Fed. Cir. Feb. 18, 2021) (concluding we lacked ju-
`risdiction because “the Clerk of the Board’s letter is noth-
`ing more than an administrative response to a repetitive
`request to reconsider” and not a final decision).
`
`Accordingly,
`
`IT IS ORDERED THAT:
`
`(1) The motion is granted. The petition is dismissed.
`
`(2) Each party shall bear its own costs.
`
` FOR THE COURT
`
` /s/ Peter R. Marksteiner
` Peter R. Marksteiner
` Clerk of Court
`
`
` December 23, 2022
`Date
`
`
`
`Case: 22-2162 Document: 13 Page: 4 Filed: 12/23/2022
`
`4
`
`
`
`CANEY v. TREASURY
`
`
`
`
`
`
`
`
`
`
`ISSUED AS A MANDATE: December 23, 2022
`
`
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