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NOTE: This order is nonprecedential.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
1 Because Mr. Sutton suggested he raised a discrim-
ination claim before the Board, this court directed the par-
ties to address whether this is a mixed case that should be
brought in a United States district court rather than this
court. See 5 U.S.C. § 7703(b)(2); see Perry v. Merit Sys.
Prot. Bd., 137 S. Ct. 1975, 1985 (2017); Ash v. OPM, 25
F.4th 1009, 1011 (Fed. Cir. 2022). The Board responds
without contradiction that Mr. Sutton did not raise a dis-
crimination claim before the Board.
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).