U.S. MERIT SYSTEMS PROTECTION BOARD 

Policy Regarding Clerk's Authority to Grant Requests to Withdraw Petitions for Review

The Board's Manual on Organization Functions & Delegations of Authority 

(Delegations Manual) states that the Merit Systems Protection Board (the Board) has

delegated adjudicatory authority to the Clerk of the Board "to grant a withdrawal of a

petition for review when requested by a petitioner." See Delegations Manual, § 2.3.5.1 

(Delegations of Adjudicatory Authorities to the Clerk of the Board). 

Consistent with the ministerial role of the Clerk of the Board, to promote 

efficiency in adjudication, the Clerk may exercise the delegated authority to grant a 

withdrawal of a petition for review when requested by a petitioner if there is no 

apparent untimeliness of the petition, see Walls v. Merit Systems Protection Board, 29 

F.3d 1578, 1582 (Fed. Cir. 1994) (setting forth the factors that the Board considers when 

deciding whether good cause exists to waive filing deadlines), and if no other party 

objects to the withdrawal, see Kravitz v. Office of Personnel Management, 75 M.S.P.R. 

44, 47 (1997) (holding that "the Board may dismiss an appeal based solely on an 

appellant's request, provided that the opposing party would not be prejudiced"). If the 

petition for review appears to be untimely, if another party objects to the withdrawal 

request, or if the requester is unable to clearly state his or her intent or otherwise 

satisfy the criteria stated herein, the Clerk is unable to grant the request because the 

issues raised must be adjudicated by the full Board. In that event, the request will be 

forwarded to the full Board for adjudication.

Additionally, if a request to withdraw is made as part of a settlement agreement 

that the parties wish to enter into the record for enforcement purposes, the Clerk 

cannot grant that request because it requires findings that must be made by the Board. 

Specifically, before accepting a settlement agreement into the record for enforcement 

purposes, the Board must determine whether the agreement is lawful on its face, 

whether the parties freely entered into the agreement, and whether the parties 

understand the agreement's terms. See, e.g., Massey v. Office of Personnel 

Management, 91 M.S.P.R. 289, ¶¶ 3-4 {2002), overruled on other grounds by Delorme v. 

Department of the Interior, 124 M.S.P.R. 123, ¶¶ 11-21 (2017) (holding that the Board 

may enforce settlement agreements that have been entered into the record, 
U.S. MERIT SYSTEMS PROTECTION BOARD 

independent of any prior finding of Board jurisdiction over the underlying matter being 

settled). 

The Clerk, however, may exercise delegated authority to grant a withdrawal 

made in fulfillment of a settlement agreement that has not been entered into the 

record for enforcement by the Board and that the parties do not intend for the Board to 

enforce. 

Finally, the Clerk cannot grant a request to withdraw an appeal in its 

entirety. Only the Board in a voted decision can grant a request to withdraw an appeal 

in which an administrative judge has issued an initial decision. Compare 5 C.F.R. § 

1201.4(f) (defining appeal as "a request for review of an agency action") with 5 C.F.R. § 

1201.4(g) (defining petition for review as "a request for review of an initial decision of a 

judge"). Thus, an appellant seeking to withdraw the appeal (rather than the petition for 

review, only) should not file a request under this policy. Such a request should still be 

filed with the Clerk's office but should clearly note that the party is seeking to withdraw 

the appeal (potentially vacating the initial decision of the administrative judge) rather 

than the petition for review (leaving in place the initial decision of the administrative 

judge). The Board will consider a request to withdraw an appeal and issue a voted 

decision. 

When the Clerk of the Board grants a request to withdraw a petition for review, 

the order granting the request will be the final order of the Board for purposes of 

exercising further review rights, including filing in court. 

This policy is hereby adopted and effective immediately, June 28, 2022.