Ikia Butler v. United States Postal Service

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IKIA BUTLER,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2024-1899
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-23-0453-I-1.
______________________
ON MOTION
______________________
Before L OURIE, C UNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
The United States Postal Service moves to dismiss this
petition as premature or, alternatively, to reform the cap-
tion as to the proper respondent. ECF No. 5. Ikia Butler
opposes.
On August 2, 2023, Ms. Butler filed a timely petition at
the Merit Systems Protection Board seeking review of an
Case: 24-1899 Document: 9 Page: 1 Filed: 08/21/2024

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BUTLER v. USPS 2
administrative judge’s initial decision. On May 31, 2024,
this court received her petition to review the same initial
decision.
We agree with the Postal Service that this court does
not yet have authority to decide this case. Although this
court has jurisdiction to review final orders or final deci-
sions 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. Butler’s pending timely petition at the Board renders
the initial decision non-final for purposes of our jurisdic-
tion. 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 review); 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 . . . .”).1
Two potential paths to this court’s review are available.
First, Ms. Butler 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 timely petition here if necessary.
Alternatively, Ms. Butler may file a motion at the Board to
withdraw her petition pursuant to the June 2022 policy
specified on the Board’s website.2 Under that policy, the
1 Ms. Butler argues the initial decision nonetheless
became final by operation of 29 C.F.R. § 38.112(b)(vii)(A)
(part of regulations for the Implementation of the Nondis-
crimination and Equal Opportunity Provisions of the
Workforce Innovation and Opportunity Act), but she has
not shown that applicable to the initial decision in this
Merit Systems Protection Board proceeding.
2 Merit Sys. Prot. Bd., Policy Regarding Clerk’s Au-
thority to Grant Requests to Withdraw Petitions for Re-
view (2022),
Case: 24-1899 Document: 9 Page: 2 Filed: 08/21/2024

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BUTLER v. USPS 3
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,
I T I S O RDERED T HAT :
(1) ECF No. 5 is granted to the extent that the petition
for review is dismissed.
(2) Each side shall bear its own costs.
August 21, 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 July 26, 2024).
Case: 24-1899 Document: 9 Page: 3 Filed: 08/21/2024

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