Case: 20-1650 Document: 33 Page: 1 Filed: 02/08/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GREGORY TURNER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1650
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-20-0125-I-1.
______________________
Decided: February 8, 2021
______________________
GREGORY TURNER, Memphis, TN, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before DYK, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
Case: 20-1650 Document: 33 Page: 2 Filed: 02/08/2021
2 TURNER v. MSPB
Gregory Turner seeks review of a final decision of the
Merit Systems Protection Board (“Board”) that dismissed
his appeal for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Turner is a partially disabled veteran. He was em-
ployed by the United States Postal Service as a city carrier
beginning 1986. He suffered an on-the-job injury in 2006.
He ceased working at the Postal Service in 2015 and is not
now being compensated. He has apparently rejected the
Postal Service’s offers that would permit him to return to
work with modified duty assignments.
On September 12, 2016, Mr. Turner filed a complaint
with the Department of Labor, alleging that the United
States Postal Service had violated his rights as a disabled
veteran under the Veterans Employment Opportunities
Act of 1998 by not reemploying him after 2015. In a letter
dated September 20, 2016, the Department of Labor in-
formed Mr. Turner that his case had been closed and that
he could appeal to the Board. The letter stated:
This is to inform you that our investigation has de-
termined that you do not meet the eligibility re-
quirements of the applicable provisions of veterans’
preference statutes and regulations under Title 5,
U.S. Code. Therefore, we are closing your case.
Although we have made this determination, you
have the right to appeal your case to the Merit Sys-
tems Protection Board (MPSB) within 15 calendar
days from the date of receipt of this letter.
SAppx 61. 1
1 “SAppx” refers to the appendix attached to the gov-
ernment’s response brief.
Case: 20-1650 Document: 33 Page: 3 Filed: 02/08/2021
TURNER v. MSPB 3
On October 5, 2016, Mr. Turner filed an appeal with
the Board and attached the letter from the Department of
Labor dated September 20, 2016. 2 On October 18, 2016,
the administrative judge presiding over Mr. Turner’s ap-
peal determined that he had not established jurisdiction
and ordered Mr. Turner to provide information to establish
that the Board had jurisdiction over his appeal under the
Veterans Employment Opportunities Act. On October 22,
2016, Mr. Turner responded by filing certain documents.
On November 8, 2016, the administrative judge issued an-
other order, again finding that jurisdiction had not been
established and requesting information from Mr. Turner to
establish the Board’s jurisdiction. On November 15, 2016,
Mr. Turner requested that his appeal be withdrawn, stat-
ing that he was “requesting withdrawal at this time” be-
cause he felt “that it will become at time to file this action
in the future [sic].” SAppx 55.
On December 6, 2016, in an “Order Regarding the Ap-
pellant’s Request to Withdraw His Appeal,” the adminis-
trative judge presiding over Mr. Turner’s appeal
acknowledged that Mr. Turner had “requested to withdraw
his appeal stating that he might refile it in the future.” Id.
at 53. The administrative judge stated that Mr. Turner
was “hereby put on notice that the withdrawal of an appeal
is an act of finality that removes the appeal from the
Board’s jurisdiction,” and, “in the absence of unusual cir-
cumstances such as misinformation or new and material
evidence, [the Board would] not reinstate an appeal once it
has been withdrawn merely because an appellant now
2 The government refers to Docket No. AT-0353-16-
0826-I-1 as the docket number for Mr. Turner’s 2016 ap-
peal. However, the filings included in the appendix at-
tached to the government’s response brief indicate that
Mr. Turner’s 2016 appeal was assigned Docket Number
AT-3330-17-0026-I-1.
Case: 20-1650 Document: 33 Page: 4 Filed: 02/08/2021
4 TURNER v. MSPB
wishes to proceed before the Board.” Id. (citing Dixon v.
Off. of Pers. Mgmt.,
44 M.S.P.R. 331, 335 (1990)).
The administrative judge also stated that, unless the
appellant notified the administrative judge “in a writing to
be received no later [than] December 13, 2016, that he [did]
not wish to withdraw his appeal,” the administrative judge
would “dismiss the appeal as withdrawn, with prejudice to
refiling regarding the same issue.”
Id. (emphases re-
moved). Mr. Turner did not respond, and on December 21,
2016, the administrative judge dismissed the appeal with
prejudice as withdrawn. Mr. Turner did not petition for
review by the full Board, and the administrative judge’s de-
cision became the Board’s final decision on January 25,
2017. See
5 C.F.R. § 1201.113. Mr. Turner did not appeal
to this court.
On November 17, 2019, Mr. Turner filed another ap-
peal with the Board that again appeared to raise a claim
under the Veterans Employment Opportunities Act of
1998. The administrative judge presiding over
Mr. Turner’s 2019 appeal ordered Mr. Turner to submit a
statement containing certain information so that the ad-
ministrative judge could determine “whether the Board
ha[d] jurisdiction over [Mr. Turner’s] appeal and whether
the exhaustion and timeliness requirements [had] been
met.” SAppx 39. In response, Mr. Turner submitted a new
complaint form for the Department of Labor dated October
15, 2019, asserting basically the same allegations as in his
2016 complaint to the Department of Labor. Mr. Turner
submitted his new complaint to the Board, but he provided
no indication the Department of Labor had acted on his
new complaint. He did provide a copy of the letter from the
Department of Labor dated September 20, 2016, acting on
his 2016 complaint.
The administrative judge determined that Mr. Turner
was seeking to relitigate the “same [Veterans Employment
Opportunities Act] issues he withdrew in December, 2016.”
Case: 20-1650 Document: 33 Page: 5 Filed: 02/08/2021
TURNER v. MSPB 5
Id. at 4. The administrative judge pointed out that
Mr. Turner had withdrawn his 2016 appeal, which was
then dismissed with prejudice. Accordingly, the adminis-
trative judge dismissed Mr. Turner’s 2019 appeal for lack
of jurisdiction. Again, Mr. Turner did not petition for re-
view by the full Board, and the administrative judge’s de-
cision became the final decision of the Board on April 6,
2020.
5 C.F.R. § 1201.113.
Mr. Turner appeals. We have jurisdiction under
5
U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited by statute. We
are permitted to set aside Board decisions only if we find
that they are (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial ev-
idence.
5 U.S.C. § 7703(c). “Whether the [B]oard had ju-
risdiction to adjudicate a case is a question of law, which
we review de novo.” Forest v. Merit Sys. Prot. Bd.,
47 F.3d
409, 410 (Fed. Cir. 1995).
Under the Board’s precedent, “[t]he withdrawal of an
appeal is an act of finality that removes the appeal from
the Board’s jurisdiction.” Dixon, 44 M.S.P.R. at 334–35.
“[T]he Board will not reinstate a withdrawn appeal absent
unusual circumstances such as misinformation or new and
material evidence.” White v. U.S. Postal Serv.,
95 M.S.P.R.
220, 222 (2003).
Mr. Turner contends that the Board’s 2016 rulings de-
clining to find jurisdiction based on the then-existing rec-
ord were erroneous, and these erroneous rulings compelled
him to dismiss the appeal. However, he does not dispute
that his 2019 appeal raised the same issues as his 2016 ap-
peal, nor does he dispute that he withdrew his 2016 appeal.
Mr. Turner also does not make any showing that he had
Case: 20-1650 Document: 33 Page: 6 Filed: 02/08/2021
6 TURNER v. MSPB
raised new and material evidence that might justify rein-
stating his case. 3
Mr. Turner instead asserts that he thought that his
withdrawal with prejudice in 2016 would affect only “the
particular case with that Administrative Judge.” Pet’r’s
Informal Reply Br. 5. Mr. Turner also argues that the ad-
ministrative judge who presided over the 2016 appeal
“failed to give [Mr. Turner] a better understanding of the
impact” of a dismissal with prejudice. Id. at 6. We disa-
gree. The December 6, 2016, order explained that “the
withdrawal of an appeal is an act of finality that removes
the appeal from the Board’s jurisdiction,” and that “[t]he
Board will give effect to an appellant’s withdrawal of an
appeal and, in the absence of unusual circumstances such
as misinformation or new and material evidence, it will not
reinstate an appeal once it has been withdrawn merely be-
cause an appellant now wishes to proceed before the
Board.” SAppx 53.
Mr. Turner also invokes the doctrine of equitable toll-
ing. The doctrine has no applicability here, where no limi-
tations period is at issue, and in any case Mr. Turner
provides no ground for equitable tolling.
The Board’s dismissal of Mr. Turner’s appeal for lack
of jurisdiction was proper. Accordingly, the Board’s deci-
sion is affirmed.
3 “New and material evidence or legal argument is
available that, despite the petitioner’s due diligence, was
not available when the record closed. To constitute new
evidence, the information contained in the documents, not
just the documents themselves, must have been unavaila-
ble despite due diligence when the record closed.”
5 C.F.R.
§ 1201.115(d) (criteria for the Board in granting a petition
for review).
Case: 20-1650 Document: 33 Page: 7 Filed: 02/08/2021
TURNER v. MSPB 7
AFFIRMED
COSTS
No costs.
