Case: 23-1000 Document: 19 Page: 1 Filed: 12/23/2022
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`NOTE: This order is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROBERT J. MACLEAN,
`Petitioner
`
`v.
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`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.
`
`O R D E R
`Robert J. MacLean moves for leave to proceed in forma
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`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.
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`Case: 23-1000 Document: 19 Page: 2 Filed: 12/23/2022
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`2
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`MACLEAN v. DHS
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` 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).
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`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
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`Case: 23-1000 Document: 19 Page: 3 Filed: 12/23/2022
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`MACLEAN v. DHS
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`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.
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`Accordingly,
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`IT IS ORDERED THAT:
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`(1) The petition for review is dismissed.
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`(2) All pending motions are denied.
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`(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
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