Sutton v. MSPB

Case: 22-2231 Document: 19 Page: 1 Filed: 03/28/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

______________________

TAFOYA L. SUTTON,

Petitioner v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent ______________________

2022-2231 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0841-22-0513-I-1.

______________________

ON MOTION

______________________

Before LOURIE, PROST, and WALLACH, Circuit Judges. PER CURIAM.

ORDER In response to the court’s January 25, 2023, order to show cause, the Merit Systems Protection Board urges dis- missal of this petition as premature. Tafoya L. Sutton moves for leave to proceed in forma pauperis but has not responded to the order to show cause.

Case: 22-2231 Document: 19 Page: 2 Filed: 03/28/2023 2 SUTTON v. MSPB

Mr. Sutton appealed to the Board challenging the Of- fice of Personnel Management’s calculation of a deposit for obtaining credit for his military service. On August 19, 2022, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. Mr. Sutton has filed a timely petition seeking review of that decision at the Board, which remains pending. He has also filed a petition seeking judicial review of the decision here. 1

This court does not yet have authority to decide this case. Although this court has jurisdiction to review a final decision of the Board, see 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(b)(1)(A), Mr. Sutton’s timely filing at the Board of a petition for review of the initial decision renders the initial decision non-final for purposes of our review. See 5 C.F.R. § 1201.113(a) (“The initial decision will not become the Board’s final decision if within the time limit for fil- ing . . . any party files a petition for review . . . .”).

Two potential paths to this court’s review are available. First, Mr. Sutton may receive a final determination from the full Board on his petition for Board review, at which point Mr. Sutton may seek this court’s review by filing a timely petition for court review. Alternatively, Mr. Sutton may file a motion at the Board to withdraw his petition pursuant to the June 2022 policy specified on the Board’s Case: 22-2231 Document: 19 Page: 3 Filed: 03/28/2023 SUTTON v. MSPB 3 website. 2 Under that policy, the Clerk of the Board may grant requests to withdraw a petition for review when there is no apparent issue of untimeliness of 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, IT IS ORDERED THAT: (1) The petition is dismissed as premature. (2) The motion for leave to proceed in forma pauperis is denied as moot.

FOR THE COURT March 28, 2023 /s/ Peter R. Marksteiner

Date Peter R. Marksteiner

Clerk of Court 2 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 March 15, 2023).