Petition for Writ of Certiorari — Gregory Turner, Petitioner v. Merit Systems Protection Board

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

GREGORY TURNER,

Appellant,

DOCKET NUMBER

AT-3330-20-0125-I-1

v.

UNITED STATES POSTAL SERVICE,

Agency.

DATE: March 2, 2020

Gregory Turner. Memphis, Tennessee, pro se.

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

Managing Counsel. Philadelphia, Pennsylvania, for the agency.

BEFORE

Brian Bohlen

Administrative Judge

INITIAL DECISION

On November 17, 2019, the appellant, Gregory Turner, filed the abovecaptioned appeal alleging that his rights as a veteran were violated by the agency,

in violation of the Veterans Employment Opportunities Act (VEOA), 5 U.S.C. §

3330a. For the reasons explained below, the appeal is dismissed because the

appellant earlier raised and withdrew the same claim, which was dismissed with

prejudice within MSPB Docket No. AT-3330-17-0026-1-1 on December 21, 2016.

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2

JURISDICTION

Background Facts Bearing on Jurisdiction

Within the appellant’s initial appeal, he stated that he was denied veterans

preference effective November 18, 2019, though he did not say exactly how. See

Initial Appeal File (IAF), Tab 4, p. 3. He also indicated on the next page of his

appeal that he had not filed a complaint with the Department of Labor concerning

his claims, and he answered “NOT APPLICABLE” to the question whether the

Department of Labor (DOL) had notified him that his USERRA or VEOA

complaint could not be resolved. Id., p. 4. Within the narrative portion of his

appeal he also stated,

I have been escorted out of the workplace for not Accepting the last

Job offer from the Office of Worker’s Compensation. The United

States Postal Service has violated my Protective rights under

Veterans Employment Opportunity Act of 1998. The Office of

Personnel Management rules under Adverse Actions said Preference

Eligibles has Protection Against Adverse Actions.

On November 20, 2019, I issued a Jurisdiction Order to the parties

concerning VEOA appeals. IAF, Tab 3. The Order explained that the Board has

jurisdiction over two types of VEOA appeals and directed the appellant to explain

the Board’s jurisdiction within VEOA over his claims, with relevant supporting

evidence. The appellant’s response to this Order documented that he is a military

veteran, and that he previously complained to DOL in September, 2016, that the

U.S. Postal Service had removed him from his position as a letter carrier without

proper adverse action procedures in violation of his rights as a veteran. See IAF,

Tab 6, p. 4. He provided a copy of the closure letter from DOL dated September

20, 2016, and he tendered a copy of a DOL Form 1010 complaint he sent to DOL

on October 15, 2019.

Within the narrative section of this Form 1010, the

appellant clarified:

I contacted my Employer the U.S. Postal Service in August 2019 to

discuss how many years they will keep me out of the work place and

why I haven't heard from them concerning anything. I was order to

leave the U.S. Postal Service in September 2014. It has been 5 yrs.

3

The U.S. Postal Service refuse to charge me so I can exercise my

rights to due process to resolve whatever the situation is. I am a 30%

Service Connected Disabled Veteran. I want to use my rights under

the Veterans Preference Act of 1944.

This is a Prohibited Personnel violation. The Office of Personnel

Management clearly states than any ADVERSE ACTIONS says this.

Preference eligibles have protections against adverse actions,

including demotion, suspension for more than 14 days, furlough for

30 days or less, and removal. These protections include advance

notice a reasonable time to respond, representation by an attorney or

other person, a final written decision, and an appeal right to Merit

Systems Protection.

IAF, Tab 6, p. 18.

Based on the appellant’s explanation of his claim, I find that this appeal

must be dismissed because the same matter was previously raised and withdrawn

by the appellant within MSPB Docket No. AT-3330-17-0026-1-1.

In MSPB

Docket No. AT-333-17-0026-I-1, the appellant claimed that he was denied

veterans’ preference in violation of VEOA, and enclosed the same September 20,

2016 closure letter from DOL as he provided in the present appeal. The matter

was later further clarified as a claim that the appellant’s veteran’s preference

rights were violated through the agency failing to return him to work following

an on-the-job injury.

This is the identical issue that the appellant is now

attempting to litigate through the present appeal,

DOL closed its the

investigation because the appellant did not provide it with documentation

showing that he was preference eligible, and because the VEOA does not apply to

issues covered by the Federal Employees Compensation Act (FECA), including a

failure to restore an employee to work following a FECA covered workplace

injury. See MSPB Docket No AT-3330-17-0026-1-1, Tab 6.

The administrative judge assigned to adjudicate MSPB Docket No. AT3330-17-0026-1-1 issued two VEOA Jurisdiction Orders. Rather than address the

jurisdictional issues identified within these Orders, the appellant requested to

withdraw his appeal. See MSPB Docket No AT-3330-17-0026-1-1, Tab 8. The

4

administrative judge promptly issued an Order on December 6, 2016, which

explained that if the appeal was withdrawn, that it would be an act of finality that

it would permanently remove the issues within the appeal from the Board’s

jurisdiction. She then explained,

The appellant is free to withdraw his appeal; however, he is hereby

put on notice that the withdrawal of an appeal is an act of finality

that removes the appeal from the Board’s jurisdiction. See Wilson v.

United States Postal Service, 41 M.S.P.R. 628, 629 (1989). The

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 because an appellant now wishes to proceed

before the Board. Dixon v. Office of Personnel Management, 44

M.S.P.R.331, 335 (1990).

Unless the appellant notifies that me in a writing to be received no

later December 13, 2016, that he does not wish to withdraw his

appeal, I will dismiss the appeal as withdrawn, with prejudice to

refiling regarding the same issue. If the appellant should decide he

does not wish to withdraw his appeal, he must comply with my

November 8, 2016 Order to establish that the Board has jurisdiction

over his VEOA appeal, and his response to that order must be

received no later than December 13, 2016. If the appellant fails to

respond to the instant order, his appeal will be dismissed as

withdrawn, with prejudice to refiling. (Emphasis in original)

The administrative judge assigned in the above-cited case issued an Initial

Decision on December 21, 2016 dismissing the appeal with prejudice as

withdrawn. Within that Initial Decision, the administrative judge noted that the

appellant had not responded to her earlier Order, quoted above. The appellant did

not appeal that Initial Decision which became the final decision of the Board

several years ago.

The appellant through the present appeal seeks to relitigate the same VEOA

issues he withdrew in December, 2016, and which were dismissed with prejudice

by the Board on December 21, 2016.

As the administrative judge who

adjudicated that prior appeal properly explained, withdrawal of an appeal is an

5

act of finality which permanently removes the matter from the Board’s

consideration.

DECISION

The appeal is DISMISSED.

FOR THE BOARD:

/S/

Brian Bohlen

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 6. 2020. unless a petition

for review is filed by that date. This is an important date because it is usually the

last day on which you can file a petition for review with the Board. However, if

you prove that you received this initial decision more than 5 days after the date of

issuance, you may file a petition for review within 30 days after the date you

actually receive the initial decision. If you are represented, the 30-day period

begins to run upon either your receipt of the initial decision or its receipt by your

representative, whichever comes first. You must establish the date on which you

or your representative received it. The date on which the initial decision becomes

final also controls when you can file a petition for review with one of the

authorities discussed in the “Notice of Appeal Rights” section, below. The

paragraphs that follow tell you how and when to file with the Board or one of

those authorities. These instructions are important because if you wish to file a

petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition

for review.

6

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and

may

only

be

accomplished

at

the

Board's

e-Appeal

website

(https ://e-appeal.mspb. gov).

NOTICE OF LACK OF QUORUM

The Merit Systems Protection Board ordinarily is composed of three

members, 5 U.S.C. § 1201, but currently there are no members in place. Because a

majority vote of the Board is required to decide a case, see 5 C.F.R. § 1200.3(a),

(e), the Board is unable to issue decisions on petitions for review filed with it at

this time. See 5 U.S.C. § 1203. Thus, while parties may continue to file petitions

for review during this period, no decisions will be issued until at least two

members are appointed by the President and confirmed by the Senate. The lack of

a quorum does not serve to extend the time limit for filing a petition or cross

petition. Any party who files such a petition must comply with the time limits

specified herein.

For alternative review options, please consult the section below titled

“Notice of Appeal Rights,” which sets forth other review options.

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in

7

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing.

(b) 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

petitioner must explain how the error affected the outcome of the case.

(c) The judge’s rulings 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.

(d) 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 unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

8

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.

If you file a petition or cross petition for review, the Board will obtain the

record in your case from the administrative judge and you should not submit

anything to the Board that is already part of the record. A petition for review

must be filed with the Clerk of the Board no later than the date this initial

decision becomes final, or if this initial decision is received by you or your

representative more than 5 days after the date of issuance, 30 days after the date

you or your representative actually received the initial decision, whichever was

first. If you claim that you and your representative both received this decision

more than 5 days after its issuance, you have the burden to prove to the Board the

earlier date of receipt. You must also show that any delay in receiving the initial

decision was not due to the deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or under penalty of perjury (see 5

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail

is determined by the postmark date. The date of filing by fax or by electronic

filing is the date of submission. The date of filing by personal delivery is the

date on which the Board receives the document. The date of filing by commercial

delivery is the date the document was delivered to the commercial delivery

service. Your petition may be rejected and returned to you if you fail to provide

a statement of how you served your petition on the other party. See 5 C.F.R.

§ 1201.4(j). If the petition is filed electronically, the online process itself will

serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(l).

9

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations.

NOTICE OF APPEAL RIGHTS

You may obtain review of this initial decision only after it becomes final,

as explained in the “Notice to Appellant” section above. 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 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 decision when it becomes final,

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

10

within 60 calendar days of the date this decision becomes final.

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 vour 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 this

decision becomes final under the rules set out in the Notice to Appellant section,

above.

582 U.S.

5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,

, 137 S. Ct. 1975 (2017). If the action involves a claim of

11

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 this decision

becomes final as explained above. 5 U.S.C. § 7702(b)(1).

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

(31 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

12

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 with the U.S.

Court of Appeals for the Federal Circuit or any court of appeals of competent

jurisdiction. The court of appeals must receive your petition for review within

60 days of the date this decision becomes final under the rules set out in the

Notice to Appellant section, above. 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

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

httn://www.uscourts.sov/Court Locator/CourtWebsites.aspx

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NOTE: This disposition is nonprecedential.

Untteb States Court of Appeals

for tfje Jfebcral 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. Ala) represented by TRISTAN L.

Leavitt, Katherine Michelle Smith.

Before DYK, MAYER, and CHEN, Circuit

Per Curiam.

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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

“SAppx” refers to the appendix attached to the gov­

ernment’s response brief.

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TURNER V. MSPB

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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-0353-160826-1-1 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-3330-17-0026-1-1.

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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

iss the appeal as withdrawn, with prejudice to

would “d

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

The administrative judge presiding over

1998.

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.”

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TURNER V. MSPB

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

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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).

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7

TURNER V. MSPB

AFFIRMED

Costs

No costs.

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Case: 20-1650

Document 17

Page: 80

Oepartmeni of Labor

Filed: 07/23/2020

ft*

Jacftson fzs, 33213

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FAX: (SC1J 321-3137

Smith.Rnhprfm-^. ■

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Oregon. Turner

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1N-20 J 6-tJfMH 9-VpR

l>esa* Mr. Turner:

Uk >'"*■<■**- Therefore,

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Atlanta Regional Office.

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Working for America’s Woi

SAppx61

O^- Dcpnrtmcnt of I-»t»nr_ Veterans’ Emnlnvmrat nil Training Smlft

v~

Mail (or FAX) to:

Veterans’ Employment and Training Service

U.S. Department of Labor

Phone: (866) 4-USA-DOL ((866>487-2365))

FAX: (404)562-2313

ATI'KWTKTW: Form IflIO

61 Forsyth Street, S.W., Room 6T8S

Atlanta, Georgia 30303

PI.EASF. TYPE OH PRINT_________________________

Section I; Chlmtnt fnfonwagap

1. Name:

Gregory

Tomer

LastName

2. Address:

First Name

5379 RiverStone Drive Memphis, Tennessee381254348

Street

412152839

3. Social Security No:

6. Email Address:

MX

City

4. Home Phone:

State

901-267-2071

FembankIane@yahoo.com

5. Cell Phone

ZIP

901-267-2071

7. Do you have a military service-connected disability?

(X] Yes QNo

Section II: Uniformed Service Information

8. Scrvc(d) h: fl/Vir National Guard FlAnny National Guard IHtany Reserve flArr Force Reserve

f~]Naval Reserve

□Marine Corps Reserve 000351 Gnaid Reserve QArmy

^Air Force

QNavy

□Marine Corps

gjjCoast Guard

□FUUic Health Service □other (Esplain in “Comments”)

□None (Retaliation Claim - Explain in “Comments”)

9. If Rcserve/National Gnard:

(a)

Name of Unit_____

(b) Unit Address:

(c)

Unit Phone:

__________

10. Dates ofService (Ifapplicable):

(a) From:

OR

11. Type ofDischarge or Separation.

To: £_

(b) Date ofExamination/Rejection for Service:________________

gi Honorable Conditions □ Entry Level □Unchaiacterized □Medical □ Other than Honorable

1~1 Other (Explain in “Comments”) Q Not Applicable

i

Section ID: Employer Information

12. Employer or Prospective Employer's Name:

13. Address: 555 South B.B. King Blvd

Street

A?P£a/Q/\

United Stales Postal Service

- Memphis, Tennessee

38101

City

14. Principal Employer Contact (PEC):

(a) PEC Name/Title:__________‘Reginald Capers

15. Employment Dates (Ifapplicable):

From:

(b) PEC Phon

06/21/1986

To:

Picacnt

16. Since beginning work with this employer, has your cumulative uniformed service exceeded S

IfYES, explain m Comments box at end ofthis claim form

17. Name of Union(s) That Represent You:

National Association ofLetter Carnets

18.^Tilieofthe Position or Occupation that is related to your claim (thejob that you either now I

Section IV: Claim Information

19. Was the Employer Support of the Guard and Reserve (ESGR) involved in handling your claim initially?

□ Yes □ No

Use items #20 and #21 to identify the program(s). (NOTE: Most claims - but not all - apply to only one program.)

. For this claim to apply only to Veterans’ Preference (VP) in Federal Employment: Complete item #20, and skip #21.

Skip item #20, and complete #21.

• For this claim to apply only to USERRA:........................................ ...............

Complete both items #20 and #21.

. For this claim to apply to both VP and USERRA:..........................................

20. Veterans’ Preference Issue (Check One): ^Hiring CD Reduction-in-Force (RIF)

21. USERRA Issuefsl: flMilitarv Obligations Discrimination CDReinstatement rilnitial Hiring Discrimination

_ Discrimination as Retaliation for any Action MStatus J~lPav Rate flSenioritv QOther Non-Seniority Benefits

_ Pension CD Layoff fTPromotion nVacation ["DUcalth Benefits [{Special Protected Period Discharge

_ Reasonable Accommodations/Retraining for Disabled l~lReasonable Accommodations/Retraining for Non-Qualified/Non-Disabled llOther

If Claim Concerns Hiring, Promotion, RIF or Termination

22. Title of Position Held or Applied For:

23. Pay Rate:

City Letter Carrier

Hourly

24. Date of Application Employment/Promotion: ____

(a) Vacancy Announcement Number: _____

(b) Date Vacancy Opened: ______________

(c) Date Vacancy Closed:

If Claim Concerns Reemployment Following Service

25. Was Prior Notice of Service Provided to Employer?

□ Yes J~] No (If “No,” Explain in Comments)

26. (a) Who Provided Notice of Service to Employer1?

□ Self □ Other (name): ________________

(b) Was the Notice of Service:

□ Written □Oral □Both

(c) Date Notice of Service was given to Employer:

27. Name/Title of Person to Whom Notice of Service was Provided:

28. Date Applied for Reemployment: __

29. Reemployment Application Made To:

30. Reemployed or Reinstated?

OR Date Returned to Work:

Name:

Title:

□ No

□ Yes (date):

at what pay rate?

(a) If YES, what position? ______________

(b) If NO, Date denied: ________________

Reason(s) given:

(c) Who denied (Name and Title): ________

PUNISHMENT FOR UNLAWFUL STATEMENTS

The information provided in this complaint will be utilized by the U.S. Department of Labor, Veterans’ Employment and Training Service (VETS) to initiate an investigation of alleged

violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) Title 38, U.S.C., Sections 4301-4335; and/or the Veterans’ Preference (VP), provisions of

the Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. §3330a-3330c. Potential claimants should keep in mind that it is unlawful to "knowingly and willfully”

make any “materially false, fictitious, or fraudulent statements or representation” to a federal agency. Violations can be punished under Section 2 of the False Statements

Accountability Act of 1996 by a fine and/or imprisonment of not more than 5 years. 18 U.S.C. § 1001.

I certify that the above information is true and correct to the best of my knowledge and belief. I authorize the U.S. Department of Labor to contact my employer or any other person for

information concerning this claim. I further authorize my employer or any other person to release such information to the U.S. Department of Labor. Pursuant to 5 U.S.C., Section

552a(b) of the Privacy Act, I authorize the U.S. Department of Labor and the U.S. Department of Defense to release information and records necessary for the investigation and

prosecution of my claim.

SIGNATURE:

DATE:

10/12/2019

Persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Public reporting burden for this collection of information is

estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing

and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this

burden, to the U.S. Department of Labor, Veterans’ Employment and Training Service, Room-S1316,200 Constitution Avenue, N.W., Washington, DC 20210.

NOTIFICATION OF USERRA CLAIMANT’S RIGHTS

For claims arising under USERRA, a person has a right to commence an action for relief directly against the employer in the appropriate federal district court (in the case of a complaint

against a State or private employer), pursuant to 38 U.S.C. § 4323(aX3), or die Merit Systems Protection Board (in the case of a complaint against a Federal executive agency or the

Office of Personnel Management), pursuant to 38 U.S.C. § 4324(b).

PRIVACY ACT STATEMENT

The primary use of this information is by staff of the Veterans’ Employment and Training Service in investigating cases under USERRA or laws/regulations relating to veterans’

preference in Federal employment. Disclosure of this information may be made to: a Federal, state or local agency for appropriate reasons; in connection with litigation; and to an

individual or contractor performing a Federal function. Furnishing the information on this form, including your Social Security Number, is voluntary. However, failure to provide this

information may jeopardize the Department of Labor’s ability to provide assistance on your claim.

Continue in Comments box &/or use additional sheet(s) to explain items if needed — Sign and date form (above)

OMB NO. 1293-0002 (EXP 01/31/2020

VETS/USERRA/VP Form 1010 (REV 12/2013) - Page 2

Explain your claim in detail - List all remedies you seek

Use additional sheets) if needed - Initial & date each page at bottom

Comments:

I contacted my Employer the U.S. Postal Service in August 2019 to

discuss how many years they will keep me out of the work place and

v. hy I havn’t hearld from them concerning anything. I was order to

leave the U S. Postal Service in September 2014. It has been 5 yrs.

The U.S. Postal Service refuse to charge me so I can exercise my

rights to due process to reslove whatever the situation is. I am a

30% Service Connected Disabled Veteran. I want to use my rights

under the Veterans Preference Act of 1944.

This is a Prohibited Personnel violation. The Office of Personnel Man

agment clearly states than any ADVERSE ACTIONS, says this

Preference eligibles have protections against adverse actions, inclu

ding demotion, suspension for more than 14 days, furlough for 30

days or less, and removal. These protections include advance notice

a reasonable time to respond, representation by an attorney or other

person, a final written decision, and an appeal right to Merit Systems

Protection

I am seeking restitution for the malicious act, Compensatoiy Damage

and Punitive Damages. This has ruined my heath and my life.

INITIALS:

GT

DATE:

10/15/19

Mail (or FAX) to:

Veterans' Employment and Training Service

U.S. Department of Labor

ATTENTION: Form 1010

61 Forsyth Street, S.W., Room 6T85

Atlanta, Georgia 30303

Phone: (866) 4-USA-DOL ((866)-487-2365))

FAX: (404) 562-2313

OMB NO. 1293-0002 (EXP 01/31/2020)

VETS/USERRA/VP Form 1010 (REV 12/2013) - Page 3

im IJUL79

riu.* ivua vwim/nw xjr mid

FORM ARE OBSOLETE.

2C04

. NWtfiast, first, traddlsj

uniiriutic ur ncuwifrux

FROM ACTIVE DUTY

A**

7. DEPARTMENT. COMPONENT AND BRANCH

TURNER, GREGORY, RMN

a. GRADE.-RATE OR RANK

4b. PAY GRADE

SR *

X SOCIAL SECURITY NO.

TRANSPORTATION - USCG

5. DATE OF BIRTH

E-l

412

62 09 02

MEMPHIS, TN

. LAST DUTY ASSIGNMENT AND MAJOk COMMAND

8. STATION WHERE SEPARATED

USCG TRAINING CENTER, CAPE MAY NJ

PSCG TRAINING CENTER, CAPE MAY, NJ

COMMAND TO WHICH TRANSFBIRED

10. SGU COVERAGE

AMOUNT S ?fT

S/A

i PRIMARY SPECIALTY NUMBER. TITLE AND YEARS AND

MONTHS IN SPECIALTY (Additional specialty number* and titles

.Tansf periods of'me or more year*}

"A S

X

A

X

X

>2. RECORD OF SERVICE

YEAR (sj

A Dole Entered AD This Period

79

79

00

00

00

00

00

79

00

b. Scpoiolion OaTo This Period

X

Ks Active Service This Period

X

A

. *1 Ttfsi rhcr Active Service

X

A

: f. To!-. Frier Inactive Service

X

X

X

X

X

fi foreign Service

X

£. Sec Servxe

X

X

| 15 | 2839

6. FIACE OF ENTRY INTO ACTIVE DUTY

X

X

X

X

h. Effective Dc'e of Pay Grode

___________ _______ ________________ ________________________

t i. Reserve Cb::g. Term. Dote

I- DECORATIONS. MEDA1S. BADGES. OTATION5 AND CAMPAIGN RIBBONS AWARDED OR AlTn~rsK7zn.-^=:7^.^r c---r^TZT

OOP

|

| NONE

MON (s)

DAY (s)

m

01

11

11

00

00

00

00

01

00

12

02

00

00

00

00

10

00

N0NE

X

x

x

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

1. MILITARY EDUCATION (Course Title, number specks, and month and jtar completed)

NONE

X

X

X

x

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

. X

X

MEMBER CONTRIBUTED TO POST-VIETNAM ERA

VETERANS' EDUCATIONAL ASSISTANCE PROGRAM I

i

I. REMARKS

j YES

□

16. HIGH SCHOOL GRADUATE OR EQUIVAIENT

I jtIyb

NO

17. DAYS ACCRUED

LEAVE PAID

I iNO

NONE

DD FORM 214 ADMINISTRATIVELY REISSUED AT COAST GUARD HEADQUARTERS: 12 JUNE 1986

HOME OF RECORD AT TIME OF ENTRY ON ACTIVE DUTY: MEMPHI

PLACE OF BIRTH: MEMPHIS, TN

x

X

X

X

x

X

X

X

X

X

X

X

X

X

X

x

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

*

e

». mailing address after separation

1529 S. MONTGOMERY

MEMPHIS, TN 38106

^StafofllRE Of /MEMBER BEING SEPARATED

22. TYPED NAME.

Jyb

E. TTTUE AND S

GN

w.yj.

ISON, LCDR, USCG

j

......

rS30 00-F02-2740

MEMBER-1

SPECIAL ADDITIONAL INFORMATION (hu use fry authorized agencies only'

TYPE OF SEPARATION

74 CHARACTER of SERVICE (Includes upgrades)

*IST.ffAftGK

SEPARATION AUTHORITY

7b, SEPARA

27. REENUSTMENT CODE

-JHD

HB-1

I 30. MEMBER REQUESTS COPY 4

"TF"

:I

.iNTTSUS

MEMBER-4

I

DEPARTMENT OF VETERANS AFFAIRS

810 Vermont Ave NW

Washington, D.C. 20420

August 22,2019

Gregory Turner

5379 Riverstone Dr

Memphis, TN 38125

In Reply Refer to:

XX-XX1-326

27/eBenefits

Dee’ Mr. Turner.

This letter is a summary of benefits you currently receive from the Department of Veterans Affairs (VA). We are

providing this letter to rfisabled Veterans to use in applying for benefits such as state or local property or vehicle tax

relief, civil service preference, to obtain housing entitlements, free or reduced state park annual memberships, or

any other program or entitlement in which verification of VA benefits is required. Please safeguard this important

document. This letter is considered an official reoord of your VA entitlement.

Our records .contain the following information:

:•

Personal Claim Information

Your VA claim number is:xx*xt326

You are the Veteran.

Military Information ;

Your most recent, verified periods of service (up to three) include:

Branch of Service

Coast Guard

Characterof Sendee/.

. Honorable

Entered Active Duty

; October 01,1979

Beteased/Dtacharged

December 11,1979

(There may be additional periods of service notGsted above.)

VA Benefit Information

You have one or more service-connected disabilities:

Yes

Your combined service-connected evaluation is:

30%

Your current monthly award amount Is:

The effective date of the test change toyour current award nas:

You are conddaed to be totally and permanently disabled due sof''1**

service-connected dlsablllries:

You should contact your state or local office of Veterans' affairs for informatk

benefits for which you may be eligible. State offices of Veterans' affairs are a

htto://www.va.aov/statedva.htm.

How You Can Contact Us

♦ If you need general information about benefits and eligibility, please visi

htto://www-va.aQV.

• Call us at 1-800-827-1000. If you use a Telecommunications Device for

829-4833.

December 01,2018

WMIV

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