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CARLEY v. DEPARTMENT OF THE ARMY

No. 04-3300.

413 F.3d 1354 (2005)

Michael CARLEY, Petitioner, v. DEPARTMENT OF THE ARMY Respondent.

United States Court of Appeals, Federal Circuit.

Rehearing Denied August 29, 2005.

Attorney(s) appearing for the Case

Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for petitioner.

Joshua E. Gardner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief was Daniel M. Kininmonth, Trial Attorney, Litigation Division, United States Department of the Army, of Fort Knox, Kentucky.

Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge NEWMAN.

CLEVENGER, Circuit Judge.

Michael Carley seeks review of the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal. See Carley v. Dep't of Def., No. CH0752020752-I-1, 96 M.S.P.R. 63, 2004 WL 716787 (M.S.P.B. March 29, 2004). Because Mr. Carley cannot establish the jurisdiction of the Board, we affirm.

I

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