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Jones v. Department of Health and Human Services

United States Court of Appeals, Federal Circuit

August 22, 2016


         Petition for review of the Merit Systems Protection Board in No. DE-4324-15-0233-I-1.

          John Paul Jones, III, Albuquerque, NM, pro se.

          Aaron E. Woodward, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Allison Kidd-Miller; Robert L. Thomas, Office of the General Counsel, United States Department of Health & Human Services, Atlanta, GA.

          Before NEWMAN, MOORE, and Wallach, Circuit Judges.

          WALLACH, Circuit Judge.

         On various dates in 2015, veteran John Paul Jones, III, filed sixteen appeals with the Merit Systems Protection Board ("MSPB"), alleging that the U.S. Department of Health and Human Services ("HHS" or "Government") violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), Pub. L. No. 103-353, 108 Stat. 3149 (codified as amended at 38 U.S.C. §§ 4301-4333 (2012)), [1] when it did not select him for various job vacancies. An administrative judge ("AJ") consolidated the appeals and ultimately denied Mr. Jones's request for relief in an Initial Decision. See Jones v. Dep't of Health & Human Servs., No. DE-4324-15-0233-1-1 (M.S.P.B. Mar. 25, 2016) (Resp't's App'x 25-38). The AJ's Initial Decision became the Final Decision of the MSPB when Mr. Jones did not timely file a petition for review of that decision before the MSPB. See 5 C.F.R. § 1201.114(e) (2016).

         Mr. Jones appeals, contending the AJ's decision contains various legal and factual errors. The Government alleges that we lack jurisdiction to hear Mr. Jones's appeal or, in the alternative, that the AJ's decision was correct and should be affirmed. We conclude that we have jurisdiction over Mr. Jones's appeal and that the AJ properly denied his claims. We therefore affirm.


         I. Subject Matter Jurisdiction

         As an initial matter, we must address whether this court possesses subject matter jurisdiction over Mr. Jones's appeal. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[A] federal court [must] satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case." (citation omitted)). The AJ stated that his Initial Decision would become final on April 29, 2016, unless Mr. Jones sought further review before the MSPB by that date. Resp't's App'x 38. Mr. Jones did not seek further review from the MSPB, but rather filed his petition for review with this court on April 4, 2016, twenty-five days before the AJ's Initial Decision became final. See Jones v. Dep't of Health & Human Servs., No. 2016-1792, Docket No. 1 at 2 (Fed. Cir. Apr. 5, 2016).

         The Government asserts that we "lack[] jurisdiction [to hear Mr. Jones's appeal] because[, ] at the time Mr. Jones filed his appeal, the [AJ's] decision was not yet final, " such that there was no final MSPB decision from which Mr. Jones could appeal. Resp't's Br. 3. As a result, the Government argues that "Mr. Jones would need to refile his appeal in order to properly invoke this [c]ourt's review power." Id. at 4 (citation omitted). We disagree.

         We possess jurisdiction over an appeal from a "final decision" of the MSPB. 28 U.S.C. § 1295(a)(9) (2012). To obtain review in this court, "a petition to review a . . . final decision of the [MSPB] shall be filed . . . within [sixty] days after the [MSPB] issues notice" of its final decision. 5 U.S.C. § 7703(b)(1)(A) (2012) (emphases added). We have held that, to invoke the court's jurisdiction to appeal the MSPB's final decision, a petitioner must file a petition for review within the time frame provided in 5 U.S.C. § 7703(b)(1)(A). See Oja v. Dep't of the Army, 405 F.3d 1349, 1357 (Fed. Cir. 2005) (The time for filing an appeal pursuant to 5 U.S.C. § 7703(b)(1) "is 'statutory, mandatory, [and] jurisdictional.'" (quoting Monzo v. Dep't of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)));[2] see also Fed. R. App. P. 15(a)(1) ("Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order." (emphasis added)).[3]

         Nevertheless, we also have held that, when a petitioner files a petition for review with this court before an AJ's initial decision becomes final, the petitioner's appeal ripens once that initial decision becomes the final decision of the MSPB. See Schmitt v. Merit Sys. Prot. Bd., 315 F.App'x 278, 280 (Fed. Cir. 2009) (unpublished) ("Mr. Schmitt prematurely appealed to this court following the AJ's initial decision. After the [MSPB] denied Mr. Schmitt's petition for review, the AJ's [initial] decision became final and Mr. Schmitt's prematurely filed appeal ripened." (citation omitted)); see also Galloway v. Dep't of Agric, No. 2009-3279, 2010 WL 2026055, at *1 (Fed. Cir. 2010) (unpublished) (similar). Contra Pinder v. U.S. Postal Serv., 267 F.App'x 938, 2008 WL 565449, at *1 (Fed. Cir. 2008) (unpublished) ("Because Pinder's petition for review in this court was filed before the AJ's [initial] decision became final, the petition is premature. Thus, we dismiss.").

         Our conclusion in Schmitt is consistent with our precedent in analogous circumstances. For example, in In re Graves, we held that an appellant's prematurely-filed notice of appeal "ripened into an effective [timely] appeal" once the underlying original administrative decision became final. 69 F.3d 1147, 1151 (Fed. Cir. 1995); see id. ("Our jurisdiction to hear the appeal was, in effect, suspended until" the decision of the Board of Patent Appeals and Interferences became final, (footnote omitted)); accord Craker v. Drug Enft Admin., 714 F.3d 17, 25 (1st Cir. 2013) (favorably citing Graves in finding that it retained jurisdiction over a prematurely-filed appeal because, inter alia, it "suspended and then resumed consideration of a petition for review" once the decision of the Drug Enforcement Administration became final). But cf. W. Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir. 1985) ("[A] challenge to now-final agency action that was filed before it became final must be dismissed" as "jurisdictional[ly] bar [red]" (citations omitted));[4] accord Council Tree Commc'ns, Inc. v. FCC, 503 F.3d 284, 291 (3d Cir. 2007) (favorably citing Western Union in dismissing a prematurely-filed petition appealing a non-final order). The decision in Graves to treat a prematurely-filed appeal of a non-final order as effectively stayed until the underlying agency order becomes final finds support in the Supreme Court's observation that "a stay is as much a refusal to exercise federal jurisdiction as a dismissal, " Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28 (1983), a position that the First Circuit has endorsed, see Craker, 714 F.3d at 25 (favorably citing Moses for the same proposition).

         The D.C. Circuit's decision in Western Union is relevant, but it neither binds us nor persuades us to dismiss Mr. Jones's appeal. "[D]ecisions of the regional circuits [relevant to] issues within our exclusive jurisdiction, " such as our jurisdiction over appeals from the MSPB, "are not binding on this court, " Superior Fireplace Co. v. Majestic Prods. Co., 270 F.3d 1358, 1372 (Fed. Cir. 2001) (citation omitted), but we may nevertheless consider those decisions for guidance, see Avocent Huntsville Corp. v. Atenlnt'l Co.,552 F.3d 1324, 1337 (Fed. Cir. 2008). In its decision, the D.C. Circuit did not address the Supreme Court's decision in Moses. See generally W. Union,773 F.2d 375. Moreover, Western Union does not account for the recent trend in Supreme Court opinions finding statutory time limits nonjurisdictional, see, e.g., Kwai Fun Wong, 135 S.Ct. at 1630-33, and the D.C. Circuit does not appear to have revisited the principle articulated in Western Union despite that recent Supreme Court precedent, ...

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