N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
DARIN A. JONES,
Petitioner

v.

MERIT SYSTEMS PROTEC TION 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

______________________

D ARIN A. J ONES , Bethesda, MD, argued pro se

.

J EFFREY G AUGER , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before N EWMAN
, B RYSON
, and M OORE
, Circuit Judges.

M OORE
, Circuit Judge

.JONES v. MSPB 2

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 jurisdi ction.

B ACKGROUND

Mr. Jones entered an excepted service position of S upervisory Contract Specialist with the FBI (“agency”) on August 28, 2011. On August 22, 2012, the agency term inated 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 one

year probationary period. He appealed his termination to the Board and alleged he had appeal rights as a prefe rence 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 elig ible and dismissed his ap peal for lack of jurisdiction.
Mr. Jones filed a petition for review, and the Board issued a final order affirming the AJ’s initial deci sion. In N ovember 2013, Mr. Jones submitted to the Board a request for reconsideration of its final order, asking t he Board to reopen his appeal. On December 19, 2013, the Office of the Clerk of the Board (“Clerk”) issued a letter d enying 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 wi th this court. On March 18, 2015, we affirmed the Board ’s decisio n 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 filedJONES 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 reco n sideration of its final order. He requested the Board reopen his appeal in light of this court’s precedential decision in McCarthy v. Merit Sy stems Protection Board , 8 09 F.3d 1365 (Fed. Cir. 2016). On February 23, the Clerk issued a letter denying his t hird 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 reco nsideration was “premised not on a change in the law, but on a claim of ‘cle ar and material legal error.’”

Mr. Jones appeals the denial of his third request for reconsideration.

D ISCUSSION
Our jurisdiction to review decisions by the Board is limited. Pur suant 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 Sy s tems 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 wa s not a “final order or final dec ision” 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 ac tion.” Id

. at 1000. Instead, we found the Clerk’s letter was “an administrative response” to the petitioner’s third requestJONES v. MSPB 4

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, w e 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 juri sdiction 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 jurisdi ction 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 mi nisterial task in denying
Mr. Jones’ repetitive request to reopen his appeal via an administrative response

. Our decision in McCarthy does not alter our concl usion. 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 Boar d as it involved an intervening change in law.” Id . Here, there is no intervening changeJONES 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. T he holding in McCarthy does not extend as far as M r. 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 juri sdiction that Mr. Jones seeks.

C ONCLUSION

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

C OSTS

No costs.