Opinion

Gregory Turner v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

finding that collateral estoppel did apply to a district court’s guilty verdict for criminal charges, despite the employee’s pending appeal, because that appeal was not subject to de novo review

How later courts described this case

finding that collateral estoppel did apply to a district court’s guilty verdict for criminal charges, despite the employee’s pending appeal, because that appeal was not subject to de novo review

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY TURNER, DOCKET NUMBER

Appellant, AT-0353-21-0103-I-1

UNITED STATES POSTAL SERVICE, DATE: April 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gregory Turner , Memphis, Tennessee, pro se.

Cynthia R. Allen , Esquire, Memphis, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal. Generally, we grant petitions such as this one only in the

following circumstances: 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

administrative judge’s rulings during either the course of the appeal or the initial

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. 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, 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. Except as expressly MODIFIED to

VACATE the application of collateral estoppel as a basis for dismissing this

appeal, we AFFIRM the initial decision’s dismissal for lack of jurisdiction.

Over the years, the appellant has filed a number of Board appeals. Many

were restoration appeals relating to a compensable injury. E.g., Turner v. U.S.

Postal Service, MSPB Docket No. AT-0353-10-0960-I-1; Turner v. U.S. Postal

Service, MSPB Docket No. AT-0353-14-0838-I-1. Some others were challenges

under the Veterans Employment Opportunities Act of 1998. E.g., Turner v. U.S.

Postal Service, MSPB Docket No. AT-3330-17-0026-I-1; Turner v. U.S. Postal

Service, MSPB Docket No. AT-0330-20-0125-I-1.

In the appeal currently before the Board, the appellant’s initial pleading

simply alleged, “refusal to take action non communication.” Turner v. U.S.

Postal Service, MSPB Docket No. AT-0353-21-0103-I-1 (0103 appeal), Initial

Appeal File (0103 IAF), Tab 1 at 3. The administrative judge issued a show

cause order. 0103 IAF, Tab 4. Among other things, he explained that it was

unclear what the appellant was challenging, whether it involved matters already

litigated in one of the appellant’s prior Board appeals, and whether it fell within

the Board’s limited jurisdiction. Id. at 2.

As the appellant responded to the administrative judge’s show cause order,

the appellant indicated that he spoke with agency officials in December 2020

about his continued status, off-duty. 0103 IAF, Tab 5 at 4. He alleged that his

situation gave rise to multiple potential claims, such as a constructive suspension.

Id. at 4-7. With this pleading, the appellant attached paystubs showing that he

was on leave without pay. Id. at 9-11.

The agency also responded to the show cause order, arguing that the instant

appeal should be dismissed. 0103 IAF, Tab 6. Among other things, the agency

explained that the appellant had been off work since 2014 due to a compensable

injury. Id. at 4-5. The agency also described the burden for establishing

jurisdiction over a restoration appeal and argued that the appellant had not met

that burden in this appeal. Id. at 6-8.

The administrative judge dismissed the instant appeal based on collateral

estoppel or, in the alternative, lack of jurisdiction. 0103 IAF, Tab 7, Initial

Decision (0103 ID) (referencing Turner v. U.S. Postal Service, MSPB Docket

No. AT-0353-20-0424-I-1 (0424 appeal)). The appellant has filed a petition for

review. Turner v. U.S. Postal Service, MSPB Docket No. AT-0353-21-0103-I-1,

Petition for Review (0103 PFR) File, Tab 1 at 5-7, with agency policies

pertaining to reasonable accommodation attached, id. at 8-102. The agency has

filed a response. 0103 PFR File, Tab 3.

Again, the appellant’s initial filing in the instant appeal did not clearly

indicate what he intended to challenge. 0103 IAF, Tab 1. As a result, the

administrative judge issued a show cause order, which resulted in the appellant

indicating that he contacted the agency in December 2020 about “how much

longer” he will “be held out of the workplace.” 0103 IAF, Tab 5 at 4. The

appellant did not allege that the agency had denied a request for restoration at that

time, but he did argue that his continued status off work amounted to a

constructive suspension, it violated his right to due process, and it constituted

harmful error. Id.

To the extent that the appellant was attempting to present a constructive

suspension appeal stemming from the absence caused by his compensable injury,

the administrative judge was correct to note that his rights and remedies are

subsumed by the restoration appeal process. ID at 7; see, e.g., Bohannon v. U.S.

Postal Service, 115 M.S.P.R. 629, ¶¶ 11-12 (2011); Kinglee v. U.S. Postal

Service, 114 M.S.P.R. 473, ¶¶ 16-22 (2010). The appellant has presented no

argument to the contrary on review. 0103 PFR File, Tab 1 at 5-7.

To the extent that the appellant was attempting to present a claim that the

agency has once again denied him restoration, the administrative judge correctly

found that he failed to meet the corresponding jurisdictional burden . ID at 3-4, 7.

In particular, the appellant failed to present nonfrivolous allegations that he

recovered sufficiently to return to duty; that the agency denied his request for

restoration; or that such a denial was arbitrary and capricious. ID at 7; see

Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 12 (describing these as among

the elements required for an appellant to establish jurisdiction over a restoration

appeal as a partially recovered employee). Again, the appellant has presented no

substantive argument to the contrary on review. 0103 PFR File, Tab 1 at 5-7.

Although the appellant’s petition does not challenge the administrative

judge’s findings, it does contain an explanation for his petition for review. Id.

at 5-6. The appellant seems to assert that he believed his initial filings would

suffice for purposes of getting a hearing, where he intended to identify and

document “all the violations” by the agency. Id. at 6.

The Board has routinely recognized that pro se filings are to be construed

liberally. E.g., Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110,

¶ 7 (2010). Even so, we find no basis for reaching a conclusion different than the

administrative judge as to the appellant failing to establish jurisdiction over the

instant appeal.

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have

jurisdiction over all matters involving a Federal employee that are allegedly

unfair or incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995).

Here, the appellant’s instant appeal indicates that he contacted the agency

in December 2020, and he remains in an off-duty status, not being paid.

However, despite repeated notice of his jurisdictional burden for a restoration

appeal, in this appeal and in those he has filed previously, the appellant presented

nothing below or on review to meet that burden for this appeal. He has also

failed to present any other reason why the Board would have jurisdiction in this

appeal, where he has presented little more than bare assertions that he remains off

work. For these reasons, we agree with the administrative judge’s dismissal for

lack of jurisdiction. 2

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

As previously noted, the administrative judge also cited collateral estoppel as a basis

for dismissing the instant appeal. 0103 ID at 5-6 (referencing Turner v. U.S. Postal

Service, MSPB Docket No. AT-0353-20-0424-I-1). At the time, the appellant had an

appeal pending before the U.S. District Court for the Western District of Tennessee,

where it appears as if the appellant may have been attempting to challenge the decision

from the earlier appeal. Id. Because of this, and because dismissal for lack of

jurisdiction was an appropriate disposition in the instant appeal, we vacate the

administrative judge’s finding regarding collateral estoppel as a basis for dismissal. We

need not decide whether collateral estoppel applies to the circumstances at hand. See

Hooker v. Department of Veterans Affairs, 122 M.S.P.R. 551, ¶¶ 4, 12 (2015)

(modifying a dismissal based on collateral estoppel to instead dismiss based on res

judicata and, therefore, finding no reason to determine whether collateral estoppel

applies); compare Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 16 (2012) (finding

that collateral estoppel did not apply where a petition for review was pending before the

Board in an initial appeal at the time of a second appeal about the same issue),

overruled on other grounds by Cronin, 2022 MSPB 13, with Cataulin v. U.S. Postal

Service, 41 M.S.P.R. 681, 683 (1989) (finding that collateral estoppel did apply to a

district court’s guilty verdict for criminal charges, despite the employee’s pending

appeal, because that appeal was not subject to de novo review).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the