NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MARIE MELTON,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________

2024-1487

______________________

Petition for review of the Merit Systems Protection 

Board in No. DE-315H-23-0206-I-1.

______________________

ON MOTION

______________________

Before LOURIE, DYK, and REYNA, Circuit Judges.

PER CURIAM.

O R D E R

In response to this court’s March 14, 2024 show cause 

order, Marie Melton “request[s] this petition be transferred 

to the appropriate district court,” ECF No. 11 at 1, while

the Department of the Army moves to dismiss, which 

Ms. Melton opposes.

Case: 24-1487 Document: 15 Page: 1 Filed: 05/17/2024
2 MELTON v. ARMY

The administrative judge denied corrective action in

Ms. Melton’s Uniformed Services Employment and 

Reemployment Rights Act of 1994 (“USERRA”) appeal, and

Ms. Melton filed a timely petition for review with the full 

Merit Systems Protection Board, which has not yet been 

resolved. Ms. Melton also filed a petition for review with 

this court.

In general, this court’s jurisdiction is limited to “an appeal from a final order or final decision of the . . . Board,” 

28 U.S.C. § 1295(a)(9). Weed v. Soc. Sec. Admin., 571 F.3d 

1359, 1361–63 (Fed. Cir. 2009). Here, there is no final decision because Ms. Melton filed a timely petition with the 

Board, and the Board has not yet resolved her petition. See

5 C.F.R. § 1201.113(a). Thus, we lack jurisdiction and dismiss her premature petition to this court.

After the Board issues a final decision on Ms. Melton’s 

petition, she may, if appropriate, file a timely petition for 

this court’s review. Alternatively, if Ms. Melton wishes to 

forgo Board review of her petition and instead directly pursue this court’s review, she may wish to review the Board’s 

withdrawal policy as identified by the Acting Clerk of the 

Board in a letter accompanying the certified list in this 

case. See ECF No. 2 at 1; see also June 2022 Board Policy.1 

Under that policy, the Clerk of the Board may grant a request to withdraw a petition for review when there is no 

apparent issue of untimeliness 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 

1 Merit Sys. Prot. Bd., Policy Regarding Clerk’s Authority to Grant Requests to Withdraw Petitions for Review (2022), 

https://www.mspb.gov/appeals/files/Policy_Regarding_Withdrawal_of_a_Petition_for_Review_1515773.pdf

(last visited May 5, 2024). 

Case: 24-1487 Document: 15 Page: 2 Filed: 05/17/2024
MELTON v. ARMY 3

order of the Board for purposes of obtaining judicial review. 

Thereafter, Ms. Melton would have to file a new petition at 

this court within 60 days of such order to obtain judicial 

review. 

Accordingly, 

 IT IS ORDERED THAT: 

(1) The Department of the Army’s motion to dismiss is 

granted, and this matter is dismissed.

(2) All other pending motions are denied.

(3) Each party shall bear its own costs.

May 17, 2024

 Date

FOR THE COURT

 

 

Case: 24-1487 Document: 15 Page: 3 Filed: 05/17/2024