Gail Turner Jacobs v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GAIL TURNER JACOBS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1738
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0841-24-0216-I-1.
______________________
ON MOTION
______________________
Before P ROST , T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
The Merit Systems Protection Board moves to dismiss
this petition for lack of jurisdiction. Gail Turner Jacobs
opposes the motion.
On March 18, 2024, Ms. Jacobs filed a timely petition
with the Board seeking review of an administrative judge’s
Case: 24-1738 Document: 16 Page: 1 Filed: 07/23/2024

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JACOBS v. MSPB 2
initial decision. The next month, this court received her
petition to review the same initial decision.
This court does not yet have authority to decide this
case. Although this court has jurisdiction to review final
orders or final decisions of the Board, see 28 U.S.C.
§ 1295(a)(9); see also Weed v. Soc. Sec. Admin., 571 F.3d
1359, 1361 (Fed. Cir. 2009), Ms. Jacobs’s pending timely
petition at the Board renders the initial decision non-final
for purposes of our jurisdiction. See 5 U.S.C.
§ 7701(e)(1)(A) (providing that the initial decision does not
become final if a party timely petitions the Board for re-
view); 5 C.F.R. § 1201.113(a) (“The initial decision will not
become the Board’s final decision if within the time limit
for filing . . . any party files a petition for review . . . .”).
Two potential paths to this court’s review are available.
First, Ms. Jacobs may wait to receive a final decision from
the Board on her petition, at which point she may seek this
court’s review by filing a petition here if necessary. Alter-
natively, Ms. Jacobs may file a motion at the Board to with-
draw her petition pursuant to the June 2022 policy
specified on the Board’s website.1 Under that policy, the
Clerk of the Board may grant requests to withdraw a peti-
tion for review when there is no apparent issue of untime-
liness with the petition and no other party objects to the
withdrawal. When the Clerk grants a request to withdraw,
the order granting the request will be the final order of the
Board for purposes of obtaining judicial review.
Accordingly,
1 Merit Sys. Prot. Bd., Policy Regarding Clerk’s Au-
thority to Grant Requests to Withdraw Petitions for Re-
view (2022),
https://www.mspb.gov/appeals/files/Policy_Regard-
ing_Withdrawal_of_a_Petition_for_Review_1515773.pdf
(last visited June 17, 2024).
Case: 24-1738 Document: 16 Page: 2 Filed: 07/23/2024

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JACOBS v. MSPB 3
I T I S O RDERED T HAT :
(1) The motion to dismiss is granted. The petition for
review is dismissed.
(2) Each side shall bear its own costs.
July 23, 2024
Date
F OR THE COURT
ISSUED AS A MANDATE: July 23, 2024
Case: 24-1738 Document: 16 Page: 3 Filed: 07/23/2024

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