NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3204
LAWRENCE R. HARTMAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________________
DECIDED: April 28, 2005
______________________________
PER CURIAM.
The Merit Systems Protection Board (“Board”) dismissed a request for corrective
action because the appellant voluntarily had dismissed a prior appeal to the Board that
had challenged the same personnel action and had not shown extraordinary
circumstances that would warrant reinstating his appeal. Hartman v. Dep’t of Veterans
Affairs, No. CH-1221-03-0500-W-1 (M.S.P.B. June 27, 2003) (“Initial Decision”). We
affirm.
I
In June 2000, the Department of Veterans Affairs removed the petitioner
Lawrence R. Hartman for inability to perform his duties and unauthorized absence.
Hartman appealed the action to the Board, but after he was granted disability
retirement, he voluntarily withdrew his appeal, which the Board dismissed in August
2000.
He then filed a complaint with the Office of Special Counsel (“Office”). In 2003
the Office informed him that it was closing its file. It pointed out that under 5 U.S.C.
§ 7121(g)(2) an aggrieved employee could elect “not more than one” of the following
remedies: “(1) to exercise his right to pursue this matter under his agency’s negotiated
grievance procedure, if any; (2) to file a timely appeal to the Merit Systems Protection
Board; or (3) to submit a complaint to the Office of Special Counsel.” It stated that “[t]he
fact that you had an appeal pending before the Board is evidence of your election of
remedies; thus, establishing our lack of jurisdiction.” It also stated that he could file a
request for corrective action with the Board. Letter from Office to Hartman (Feb. 19,
2003).
Hartman filed such a request. In his initial decision, which became final when the
Board denied review, the Board’s administrative judge dismissed the request for
corrective action. The administrative judge stated:
The record shows the appellant withdrew his first
MSPB appeal, which challenged the removal action that
forms the basis for the instant request for corrective action.
Withdrawal of an appeal is an act of finality that removes the
underlying action from the MSPB’s jurisdiction, and the
appeal will not be reinstated in the absence of unusual
circumstances, such as where the decision to withdraw was
based on misleading or incorrect information . . .
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[T]he record does not indicate the sort of unusual
circumstances that would justify reinstating the appellant’s
prior MSPB appeal. Consequently, his request for corrective
action must be dismissed.
Although OSC’s February 13, 2003 letter invited the
appellant to file a request for corrective action with the
MSPB, an erroneous notice of appeal rights does not create
a right of appeal where one would not otherwise exist.
Initial Decision at 3-4.
II
As the Office noted, under 5 U.S.C. § 7121(g)(2), Hartman was required to elect
only one of three remedies. By filing a timely appeal with the Board, Hartman made his
election and he was precluded from later seeking relief from the Office. See Thurman v.
Dep’t of Def., 77 M.S.P.R. 598, 600-01 (1998); Collins v. Dep’t of Transp., 89 M.S.P.R.
582, 587-88 (2001). Hartman’s voluntary dismissal of his appeal to the Board did not
vitiate his earlier election to invoke that remedy.
The Board’s settled practice apparently is that an appellant’s voluntary
withdrawal of an appeal to it precludes the Board from reinstating the appeal unless
there are unusual circumstances. See Drummond v. Dep’t of Def., 91 M.S.P.R. 231,
233 (2002); Gallegos v. Fed. Deposit Ins. Corp., 90 M.S.P.R. 159, 161 (2001); Roberts
v. Dep’t of Veterans Affairs, 52 M.S.P.R. 168, 171 (1991). As the administrative judge
correctly stated, the fact that the Office told Hartman that he could seek corrective
action from the Board does not create a right of appeal where one would not otherwise
exist. See Mosher v. United States Postal Serv., 32 M.S.P.R. 355, 357 (1987).
We have no reason to reject the administrative judge’s conclusion that Hartman
had not shown “the sort of unusual circumstances that would justify reinstating the
appellant’s prior MSPB appeal.” The Board justifiably concluded that Hartman having
04-3204 3
“manifested signs of mental illness” did not amount to such unusual circumstances.
The Board also noted that Hartman “has not alleged that he relied on misleading or
incorrect information in reaching his decision to withdraw his first MSPB appeal.” Initial
Decision at 3. Consequently, the Board’s dismissal of Hartman’s request for corrective
action was proper.
CONCLUSION
The Board’s dismissal of Hartman’s request for corrective action is affirmed.
04-3204 4