Jaime Melendez v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAIME MELENDEZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1950
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-24-0246-I-1.
______________________
ON MOTION
______________________
Before D YK, REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s July 17, 2024 show cause or-
der, the Merit Systems Protection Board argues for dismis-
sal while Jaime Melendez seeks to proceed with the case.
Mr. Melendez appealed to the Board alleging that his
resignation from the Department of the Treasury was in-
voluntary and based, at least in part, on disability
Case: 24-1950 Document: 17 Page: 1 Filed: 09/17/2024

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MELENDEZ v. MSPB 2
discrimination. The administrative judge dismissed Mr.
Melendez’s appeal for lack of jurisdiction. Mr. Melendez
filed a petition for review with the Board, which remains
pending, and a petition for review with this court. In filings
with this court, Mr. Melendez states that he abandons the
“claim that [he] was discriminated against” and will “only
pursue civil- service claims in the Federal Circuit.” ECF
No. 4 at 3.1
We dismiss. This court only has jurisdiction over “an
appeal from a final order or final decision of the . . . Board.”
28 U.S.C. § 1295(a)(9). A timely petition for Board review
renders the initial decision non-final. See 5 C.F.R.
§ 1201.113(a); Weed v. Soc. Sec. Admin., 571 F.3d 1359,
1361–63 (Fed. Cir. 2009). Given Mr. Melendez’s pending
petition at the Board, we currently lack jurisdiction. After
the Board issues a final decision on his petition, he may, if
necessary, file a timely petition for this court’s review. Al-
ternatively, if Mr. Melendez wishes to forgo Board review
of his petition and instead directly pursue this court’s re-
view, he may wish to review the Board’s withdrawal policy
as identified by the Clerk of the Board in a letter accompa-
nying the certified list in this case. See ECF No. 11 at 1;
see also June 2022 Board Policy.2
1 Mr. Melendez indicated that he was seeking this
court’s review of his involuntary resignation claim while
simultaneously seeking review of the Board’s decision be-
fore the Equal Employment Opportunity Commission, but
the parties’ responses confirm that is not the circumstance.
See ECF No. 16 at 2; ECF No. 15 at 3 n.1.
2 Merit Sys. Prot. Bd., Policy Regarding Clerk’s Au-
thority to Grant Requests to Withdraw Petitions for Re-
view (2022),
Case: 24-1950 Document: 17 Page: 2 Filed: 09/17/2024

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MELENDEZ v. MSPB 3
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed.
(2) All pending motions are denied.
(3) Each party shall bear its own costs.
September 17, 2024
Date
F OR THE COURT
https://www.mspb.gov/appeals/files/Policy_Regard-
ing_Withdrawal_of_a_Petition_for_Review_1515773.pdf
(last visited September 6, 2024).
Case: 24-1950 Document: 17 Page: 3 Filed: 09/17/2024

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