Janet M. Martin v. Office of Personnel Management

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JANET M. MARTIN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-2419
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0831-23-0256-I-1.
______________________
ON MOTION
______________________
Before P ROST , H UGHES , and STOLL , Circuit Judges.
P ER CURIAM .
O R D E R
The Office of Personnel Management (OPM) moves to
dismiss this petition for lack of jurisdiction. Janet M. Mar-
tin has not responded.
On September 18, 2023, Ms. Martin filed a timely peti-
tion with the Merit Systems Protection Board seeking re-
view of an administrative judge’s initial decision. The
Case: 23-2419 Document: 6 Page: 1 Filed: 12/14/2023

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MARTIN v. OPM 2
following day, 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. Martin’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. Martin may wait to receive a final determination
from the Board on her petition, at which point she may seek
this court’s review by filing a timely petition here if neces-
sary. Alternatively, Ms. Martin may file a motion at the
Board to withdraw her petition pursuant to the June 2022
policy specified on the Board’s website.* Under that policy,
the Clerk of the Board may grant requests to withdraw a
petition for review when there is no apparent issue of un-
timeliness with the petition and no other party objects to
the withdrawal. When the Clerk grants a request to with-
draw, the order granting the request will be the final order
of the Board for purposes of obtaining judicial review.
Accordingly,
* 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 October 26, 2023).
Case: 23-2419 Document: 6 Page: 2 Filed: 12/14/2023

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MARTIN v. OPM 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.
December 14, 2023
Date
F OR THE COURT
ISSUED AS A MANDATE: December 14, 2023
Case: 23-2419 Document: 6 Page: 3 Filed: 12/14/2023

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