for review of the Merit Systems Protection Board in No.
Paul Jones, III, Albuquerque, NM, pro se.
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.
NEWMAN, MOORE, and Wallach, Circuit Judges.
WALLACH, Circuit Judge.
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)),  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)
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.
Subject Matter Jurisdiction
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.
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.
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))); 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."
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.").
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)); 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).
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,