NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DARIN A. JONES,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-1711

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-315I-12-0847-I-1.

______________________ 

Decided: January 10, 2017

______________________ 

DARIN A. JONES, Bethesda, MD, argued pro se. 

JEFFREY GAUGER, Office of the General Counsel, Merit 

Systems Protection Board, Washington, DC, argued for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before NEWMAN, BRYSON, and MOORE, Circuit Judges.

MOORE, Circuit Judge. 
2 JONES v. MSPB

Darin A. Jones appeals from a denial by the Merit 

Systems Protection Board (“Board”) of his third request 

for reconsideration of the Board’s final order. For the 

reasons discussed below, we dismiss for lack of jurisdiction.

BACKGROUND

Mr. Jones entered an excepted service position of Supervisory Contract Specialist with the FBI (“agency”) on 

August 28, 2011. On August 22, 2012, the agency terminated him for failing to meet the agency’s suitability 

standards. The agency informed him that he did not have 

appeal rights because he was terminated during his oneyear probationary period. He appealed his termination to 

the Board and alleged he had appeal rights as a preference eligible “employee” pursuant to 

5 U.S.C. § 7511(a)(1)(B). 

In an initial decision, the Administrative Judge (“AJ”) 

determined Mr. Jones did not qualify as preference eligible and dismissed his appeal for lack of jurisdiction. 

Mr. Jones filed a petition for review, and the Board issued 

a final order affirming the AJ’s initial decision. In November 2013, Mr. Jones submitted to the Board a request 

for reconsideration of its final order, asking the Board to 

reopen his appeal. On December 19, 2013, the Office of 

the Clerk of the Board (“Clerk”) issued a letter denying 

his request and informing him that there is “no further 

right to review of this appeal by the Board.” 

On December 23, 2013, Mr. Jones filed a petition for 

review of the Board’s final order with this court. On 

March 18, 2015, we affirmed the Board’s decision under 

Federal Circuit Rule 36, and on April 8, we denied 

Mr. Jones’ petition for panel rehearing. On April 15, 

Mr. Jones submitted to the Board a second request for 

reconsideration of its final order, and on April 29, the 

Clerk issued a letter denying the request. On May 12, 

this court’s mandate issued to the Board. Mr. Jones filed 
JONES v. MSPB 3

a petition for writ of certiorari at the Supreme Court,

which was denied. 

On January 28, 2016, Mr. Jones submitted to the 

Board a third request for reconsideration of its final order. 

He requested the Board reopen his appeal in light of this 

court’s precedential decision in McCarthy v. Merit Systems Protection Board, 809 F.3d 1365 (Fed. Cir. 2016). On 

February 23, the Clerk issued a letter denying his third 

request. The Clerk’s letter stated that “the decision in 

McCarthy was expressly limited to situations in which the 

Board denies a first request for reconsideration that is 

premised on a change in the law,” and it noted that his 

third request for reconsideration was “premised not on a 

change in the law, but on a claim of ‘clear and material 

legal error.’”

Mr. Jones appeals the denial of his third request for 

reconsideration. 

DISCUSSION

Our jurisdiction to review decisions by the Board is 

limited. Pursuant to 28 U.S.C. § 1295(a)(9), we may only 

hear “an appeal from a final order or final decision” of the 

Board. We conclude that the Clerk’s letter denying 

Mr. Jones’ third request to reopen his appeal was not a 

final order or decision of the Board, but an administrative 

response, over which we lack jurisdiction.

In Haines v. Merit Systems Protection Board, 44 F.3d 

998, 999 (Fed. Cir. 1995), we found that a letter from the 

Clerk of the Board informing the petitioner it did not plan 

to reopen her appeal was not a “final order or final decision” of the Board for purposes of 28 U.S.C. § 1295(a)(9). 

The letter “was neither an administrative judge’s initial 

decision, a denial of a petition for review by the Board, 

nor a Board decision disposing of an entire action.” Id. 

at 1000. Instead, we found the Clerk’s letter was “an 

administrative response” to the petitioner’s third request 
4 JONES v. MSPB

to reopen her appeal, and the Clerk “was performing only 

a ministerial function” in accordance with its delegated 

authority. Id. 

Similar to Haines, the Clerk’s letter in this case was 

not an AJ’s initial decision, a denial of a petition for 

review by the Board, or a Board decision disposing of an 

entire action. Rather, the Clerk’s letter was a denial of 

Mr. Jones’ third repetitive request to reopen his appeal. 

Mr. Jones argues his third request was not repetitive 

because the Board was divested of jurisdiction to review 

his first two requests during the pendency of his appeal of 

the Board’s final order before this court. However, we 

agree with the government that although the Board lacks 

jurisdiction to consider a request for reconsideration while

an appeal is before this court, here, the Board had jurisdiction over Mr. Jones’ first request to reopen because he 

had not yet filed his appeal of the Board’s final order in 

this court. See Anderson v. Dep’t of Transp., 

46 M.S.P.R. 341, 350–51 (1990), aff’d, 949 F.2d 404 (Fed. 

Cir. 1991). Regardless of whether the Board had jurisdiction over Mr. Jones’ second request to reopen, which was 

submitted and denied before this court issued its mandate 

in the appeal of the Board’s final order, the Board had 

jurisdiction to consider his third request to reopen. Thus, 

the Clerk performed a ministerial task in denying 

Mr. Jones’ repetitive request to reopen his appeal via an 

administrative response. 

Our decision in McCarthy does not alter our conclusion. The facts of this case are unlike those in McCarthy. 

In McCarthy, we construed the Clerk’s letter denying 

McCarthy’s motion to reopen his appeal as a reviewable 

“final order or final decision.” McCarthy, 809 F.3d

at 1370. In contrast to Mr. Jones’ request to reopen, 

“McCarthy’s motion to reopen had not been previously 

considered by the Board as it involved an intervening 

change in law.” Id. Here, there is no intervening change 
JONES v. MSPB 5

in law at issue. The Board has previously considered Mr. 

Jones’ motion to reopen.

Mr. Jones argues that because we found jurisdiction 

in McCarthy to review a motion to reopen based on a 

change in law, we should similarly find jurisdiction to 

review his third request to reopen, which is based on 

alleged “clear and material legal error,” or “oversight,” by 

the Board. The holding in McCarthy does not extend as 

far as Mr. Jones would like. In McCarthy, we held that 

“at least in the case of a Board decision on a motion to 

reopen that is premised on a change in law, we have 

jurisdiction to review . . . .” Id. at 1373. We stated that 

“[w]hether we have jurisdiction to review decisions on 

motions to reopen that are premised on other grounds . . . 

are issues we need not reach, and we decline to do so 

here.” Id. McCarthy does not provide the route to jurisdiction that Mr. Jones seeks.

CONCLUSION

Because the Board’s denial of Mr. Jones’ third request 

for reconsideration was not “a final order or final decision” 

for the purposes of 28 U.S.C. § 1295(a)(9), we dismiss the 

appeal for lack of jurisdiction.

DISMISSED

COSTS

No costs.