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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31123

Summary Calendar

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 twelvemonth term ending July 11, 1993. The Army terminated Orr on July 11, 1993

at the end of the term of employment.

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2010

Lyle W. Cayce

Clerk

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No. 09-31123

2

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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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.

Case: 09-31123 Document: 00511117518 Page: 3 Date Filed: 05/20/2010