The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. PETERS, SR., DOCKET NUMBER
Appellant, DA-3443-14-0669-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 6, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James D. Peters, Sr., Bogalusa, Louisiana, pro se.
Sean Galvin, Esquire, Alexandria, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as withdrawn. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law to the facts of the case; the judge’s rulings
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed this Board appeal in which he appears to allege that,
because he retired pursuant to a disability retirement, the agency should have
designated “medical reasons” as the reason for his resignation on his Standard
Form 50 as opposed to the designation of “personal reasons.” Initial Appeal File
(IAF), Tab 1; see IAF, Tab 6 at 19, Tab 12. The administrative judge informed
the appellant that the Board may not have jurisdiction over his appeal and that it
appeared to be untimely; he therefore ordered the appellant to show that his
appeal was both within the Board’s jurisdiction and timely filed. IAF, Tabs 2-3.
The administrative judge held a status conference with the parties and later
suspended the case, at their request, to allow additional time for settlement
discussions. IAF, Tab 10. Subsequently, the appellant requested to withdraw his
appeal. IAF, Tabs 12-13. The administrative judge therefore dismissed the
appeal as withdrawn. IAF, Tab 14, Initial Decision.
¶3 The appellant has filed a timely petition for review in which he requests to
revoke his withdrawal. Petition for Review (PFR) File, Tab 1 at 3. Specifically,
he asserts that he was not in his “right frame of mind” and was suffering from
mental illness. Id. He also appears to assert that the administrative judge told
him that, if he could not come to an agreement with the agency, then he would be
3
ordered to return to work. Id. The agency did not respond to the petition for
review.
¶4 An appellant’s withdrawal of an appeal is an act of finality. Page v.
Department of Transportation, 110 M.S.P.R. 492, ¶ 5 (2009). Generally, the
Board will not reinstate a withdrawn appeal absent unusual circumstances such as
misinformation or new and material evidence. Id. A voluntary withdrawal,
however, must be clear, decisive, and unequivocal. Id.
¶5 Our review of the record reveals nothing that would warrant reinstatement
of the instant appeal. First, although the appellant alleges that his withdrawal
was influenced by misinformation from the administrative judge, there is no
evidence that the administrative judge provided the alleged misinformation. See
Powell-Johnson v. U.S. Postal Service, 103 M.S.P.R. 340, ¶ 15 (2006) (finding
that, while the appellant alleged that the administrative judge provided her with
misinformation, there was no evidence that this occurred). Second, although the
appellant contends that he was suffering from mental illness, he does not explain
how the alleged mental illness affected his decision to withdraw his appeal or
show that he was unable to fully understand the effect of his withdrawal. See
Auyong v. Department of the Navy, 97 M.S.P.R. 267, ¶ 7 (2004) (finding that the
appellant’s medical evidence showing that he suffered from a mental illness did
not warrant reinstatement of his withdrawn appeal because he did not show that,
as a result of this illness, he was unable to fully understand the nature of his
withdrawal). Accordingly, we affirm the initial decision dismissing his appeal as
withdrawn.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
4
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s "Guide
for Pro Se Petitioners and Appellants," which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
5
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.