Jones v. Department of the Army

Petitioner Owen R. Jones, received an adverse decision under the Civil Service Reform Act from the Merit Systems Protection Board. Subsequently he filed two appeals from that decision on the very same day (November 9, 1981)-one in the United States Court of Appeals for the Sixth Circuit and the other in this court. The Government has moved to dismiss the appeal in this court because 28 U.S.C. §1500 excludes this court from jurisdiction over a claim against the Government where the plaintiff already has a parallel claim pending in another court. Petitioner has not responded to that motion and his time to do so has long expired.

Without deciding whether this court would be required by 28 U.S.C. §1500 to dismiss the instant appeal as a matter of law, we dismiss the appeal in this court for the reason that (1) the Civil Service Reform Act, 5 U.S.C. §7703(b)(l), provides that an appeal from a decision of the Merit Systems Protection Board may be filed either in this court *914or in the pertinent court of appeals, and (2) petitioner has indicated by his failure in any way to respond to the Government’s motion to dismiss that he wishes to abandon his appeal in this court and to proceed in the Sixth Circuit.

This appeal is dismissed.