       NOTE: This disposition is nonprecedential.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 jurisdic-
tion.
                      BACKGROUND
    Mr. Jones entered an excepted service position of Su-
pervisory Contract Specialist with the FBI (“agency”) on
August 28, 2011. On August 22, 2012, the agency termi-
nated 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 prefer-
ence       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 eligi-
ble 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 No-
vember 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 Sys-
tems 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 deci-
sion” 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 juris-
diction 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 jurisdic-
tion 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 conclu-
sion. 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 juris-
diction 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.
