Marie Melton v. Department of the Army

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARIE MELTON,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-1487
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-315H-23-0206-I-1.
______________________
ON MOTION
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s March 14, 2024 show cause
order, Marie Melton “request[s] this petition be transferred
to the appropriate district court,” ECF No. 11 at 1, while
the Department of the Army moves to dismiss, which
Ms. Melton opposes.
Case: 24-1487 Document: 15 Page: 1 Filed: 05/17/2024

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MELTON v. ARMY 2
The administrative judge denied corrective action in
Ms. Melton’s Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) appeal, and
Ms. Melton filed a timely petition for review with the full
Merit Systems Protection Board, which has not yet been
resolved. Ms. Melton also filed a petition for review with
this court.
In general, this court’s jurisdiction is limited to “an ap-
peal from a final order or final decision of the . . . Board,”
28 U.S.C. § 1295(a)(9). Weed v. Soc. Sec. Admin., 571 F.3d
1359, 1361–63 (Fed. Cir. 2009). Here, there is no final de-
cision because Ms. Melton filed a timely petition with the
Board, and the Board has not yet resolved her petition. See
5 C.F.R. § 1201.113(a). Thus, we lack jurisdiction and dis-
miss her premature petition to this court.
After the Board issues a final decision on Ms. Melton’s
petition, she may, if appropriate, file a timely petition for
this court’s review. Alternatively, if Ms. Melton wishes to
forgo Board review of her petition and instead directly pur-
sue this court’s review, she may wish to review the Board’s
withdrawal policy as identified by the Acting Clerk of the
Board in a letter accompanying the certified list in this
case. See ECF No. 2 at 1; see also June 2022 Board Policy.1
Under that policy, the Clerk of the Board may grant a re-
quest to withdraw a petition for review when there is no
apparent issue of untimeliness 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
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 May 5, 2024).
Case: 24-1487 Document: 15 Page: 2 Filed: 05/17/2024

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MELTON v. ARMY 3
order of the Board for purposes of obtaining judicial review.
Thereafter, Ms. Melton would have to file a new petition at
this court within 60 days of such order to obtain judicial
review.
Accordingly,
I T I S O RDERED T HAT :
(1) The Department of the Army’s motion to dismiss is
granted, and this matter is dismissed.
(2) All other pending motions are denied.
(3) Each party shall bear its own costs.
May 17, 2024
Date
F OR THE COURT
Case: 24-1487 Document: 15 Page: 3 Filed: 05/17/2024

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