Case: 23-1962 Document: 9 Page: 1 Filed: 10/19/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATTHEW MCCORMACK,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2023-1962
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-23-0046-I-1.
______________________
ON MOTION
______________________
Before DYK, CUNNINGHAM, and STARK, Circuit Judges.
PER CURIAM.
ORDER
Matthew McCormack moves for leave to proceed in
forma pauperis. The Department of the Navy moves to dis-
miss the petition for lack of jurisdiction. Mr. McCormack
has not responded.
Mr. McCormack appealed his suspension to the Merit
Systems Protection Board. The administrative judge
Case: 23-1962 Document: 9 Page: 2 Filed: 10/19/2023
2 MCCORMACK v. NAVY
issued an initial decision affirming the agency’s action. On
March 15, 2023, Mr. McCormack filed a timely petition
seeking review of that decision at the Board, and that peti-
tion remains pending. The following day, this court re-
ceived his 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), Mr. McCormack’s pending pe-
tition at the Board seeking review renders the initial deci-
sion 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, Mr. McCormack may wait to receive a final determi-
nation from the Board on his petition, at which point Mr.
McCormack may seek this court’s review by filing a timely
petition here if necessary. Alternatively, Mr. McCormack
may file a motion at the Board to withdraw his 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 untimeliness with the petition
and no other party objects to the withdrawal. When the
Clerk grants a request to withdraw, the order granting the
* 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 September 21, 2023).
Case: 23-1962 Document: 9 Page: 3 Filed: 10/19/2023
MCCORMACK v. NAVY 3
request will be the final order of the Board for purposes of
obtaining judicial review.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted. The petition for
review is dismissed.
(2) All other pending motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
October 19, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Clerk of Court
ISSUED AS A MANDATE: October 19, 2023
