Gregory Turner v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GREGORY TURNER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1080
______________________
Petition for review of the Merit Systems Protection
Board in Nos. AT-0353-14-0838-B-1, AT-0752-15-0199-I-1.
______________________
Decided: March 10, 2017
______________________
G REGORY T URNER, Memphis, TN, pro se.
K ATHERINE MICHELLE SMITH , Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
BRYAN G. P OLISUK.
______________________
Before L OURIE, REYNA , and STOLL , Circuit Judges.
P ER CURIAM .

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TURNER v. MSPB 2
Gregory Turner (“Turner”) seeks review of the consol-
idated final order of the Merit Systems Protection Board
(“the Board”), see Turner v. U.S. Postal Serv., 123
M.S.P.R. 640 (Oct. 4, 2016) (“Final Order”), following
initial decisions dismissing his two appeals for failure to
prosecute. Turner v. U.S. Postal Serv., No. AT-0752-15-
0199-I-1 (M.S.P.B. May 24, 2016); Turner v. U.S. Postal
Service, No. AT-0353-14-0838-B-1 (M.S.P.B. May 24,
2016); see also Resp’t’s App. (“R.A.”) 18–42. Because the
Board’s decision was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law, we
affirm.
BACKGROUND
On October 27, 2006, Turner, a City Carrier for the
U.S. Postal Service (“the Agency”), suffered a compensa-
ble injury. R.A. 12. On August 5, 2010, he appealed to
the Board, alleging that the Agency had failed to restore
him to duty according to 5 C.F.R. § 353. Id. On March
31, 2011, the administrative judge (“AJ”) issued an initial
decision concluding that the Agency had denied Turner
restoration and ordered the Agency to return him to duty.
Turner v. U.S. Postal Serv., No. AT-0353-10-0960-I-1
(M.S.P.B. March 31, 2011). Neither party filed a petition
for review and the initial decision became the final deci-
sion of the Board. See 5 C.F.R. § 1201.113.
On September 27, 2013, Turner filed a petition for en-
forcement with the Board claiming again that the Agency
denied him restoration, starting on April 1, 2013, by
reducing his duty assignment from eight hours to six
hours. R.A. 12. Turner argued that his doctor cleared
him to work eight hours per day with certain restrictions.
The Agency disagreed, arguing that Turner’s doctor had
only cleared him to work six hours per day. Resp’t’s Br.
(“R.B.”) 2–3. After the AJ denied Turner’s new petition
for enforcement, the AJ docketed a new appeal (“the first
appeal”) relating to Turner’s allegation that the Agency

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TURNER v. MSPB 3
had violated his restoration rights. Final Order, 123
M.S.P.R. at 641; R.A. 35. On February 2, 2015, the AJ
dismissed Turner’s appeal, concluding that Turner did not
make any nonfrivolous allegation of a violation of his
restoration rights and failed to establish the Board’s
jurisdiction over his appeal. Turner v. U.S. Postal Serv.,
No. AT-0353-14-0838-I-1 (M.S.P.B. Feb. 2, 2015); R.A. 1–
10.
Turner then petitioned for review of the dismissal of
the first appeal by the full Board. The Board concluded
that even though the Agency properly reduced Turner’s
hours in September 2013 pursuant to his doctor’s guide-
lines, Turner alleged that the Agency reduced his hours
beginning in late March or early April 2013, which was
before his doctor’s notes were received. Accordingly, the
Board vacated the initial decision and remanded the case
to the AJ for a hearing. Turner v. U.S. Postal Service, No.
AT-0353-14-0838-I-1, 2015 WL 5673131 (M.S.P.B. Sept.
28, 2015); R.A. 11–17.
On December 9, 2014, while the first appeal was
pending, Turner filed a new appeal (“the second appeal”)
alleging that the agency had failed to restore him to duty
when his supervisor ordered him not to return to work on
December 6, 2014. Final Order, 123 M.S.P.R. at 643; R.A.
37.
On February 2, 2016, the AJ issued orders scheduling
a telephonic status conference for both appeals on Febru-
ary 11, 2016 at 10:00 a.m. Final Order, 123 M.S.P.R. at
642; R.A. 35. Turner was also informed that the Agency
had requested his written consent to release his workers’
compensation records from the Department of Labor. The
medical records were the crux of the dispute as to whether
Turner was able to work six or eight hours beginning on
April 1, 2013. The Agency argued that without Turner’s
written authorization, it would be unable to obtain the
medical records from the Department of Labor. The

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TURNER v. MSPB 4
February 2, 2016 orders were served on Turner at his
address of record pursuant to his notices of change of
address filed with the court in November and December of
2015. Final Order, 123 M.S.P.R. at 642; R.A. 35. Turner
did not call in for the status conference on February 11,
2016 and did not respond to the Agency’s request for
written authorization to release his medical records.
On February 17, 2016, the AJ ordered Turner, in both
appeals, to send the Agency authorization to obtain his
medical records by February 26, 2016 and warned him
that if he failed to comply with Board orders his appeals
could be dismissed for failure to prosecute. Final Order,
123 M.S.P.R. at 642–43; R.A. 36. The orders were served
on Turner at his address of record. Turner did not comply
with the February 17, 2016 orders and did not explain
why he did not call in to the status conference.
On March 11, 2016, the AJ issued a second set of or-
ders directing Turner to send the Agency authorization to
obtain his medical records by March 21, 2016 and order-
ing him to update his contact information, including a
credible telephone number. Final Order, 123 M.S.P.R. at
642–43; R.A. 36. Again, the AJ warned Turner that if he
failed to comply with Board orders his appeals could be
dismissed for failure to prosecute. The orders were again
served on Turner at his address of record and he did not
comply with the orders.
On April 8, 2016, the AJ issued a third and final set of
orders instructing Turner to provide the Agency with
authorization to obtain his medical records by April 19,
2016. Final Order, 123 M.S.P.R. at 642–43; R.A. 36. As
with the previous orders, Turner was put on notice that
his appeals could be dismissed if he failed to comply, and
the orders were served on Turner at his address of record.
Turner did not comply with the AJ’s third and final set of
orders.

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TURNER v. MSPB 5
On April 26, 2016, Turner re-registered as an e-filer
on the Board’s e-appeal system, but at that time he still
had not responded to or complied with any of the AJ’s
orders. Final Order, 123 M.S.P.R. at 643; R.A. 37.
On May 24, 2016, the AJ issued initial decisions dis-
missing both of Turner’s appeals for failure to appear at
the telephone status conference, failure to keep his con-
tact information up-to-date with the Board, and failure to
respond to three separate sets of orders instructing him to
provide his written authorization to the Agency to release
his medical records. R.A. 18–33.
Turner filed petitions for review arguing that he did
not comply with the AJ’s orders because he lacked access
to a telephone or computer due to financial difficulties.
Final Order, 123 M.S.P.R. at 644; R.A. 38. Turner also
asserted that the Agency did not need his written consent
because the Agency already had full access to his medical
records at the Department of Labor. R.B. 7. The Agency
filed a response arguing that the Department of Labor
was prohibited from providing medical records to an
employing agency for litigation purposes without the
employee’s consent pursuant to a Memorandum of Under-
standing between the Postal Service and the Department
of Labor. Id. Turner filed a reply stating that he was
diagnosed with “mental confusion” which began at the
start of his appeal in January 2016 and contributed to his
lack of communication with the Board and compliance
with the Board’s orders during his appeal. R.A. 94.
On October 4, 2016, the Board issued a final order
denying Turner’s petitions for review and affirming the
AJ’s initial decision to dismiss the appeals for failure to
prosecute. Final Order, 123 M.S.P.R. at 644–45. The
Board reasoned that although the sanction of dismissal is
severe, the AJ did not abuse her discretion in imposing it
in light of Turner’s repeated failure to respond to the AJ’s
orders. Id. Although the Board expressed sympathy for

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TURNER v. MSPB 6
Turner’s difficulties, it ruled that “those difficulties do not
explain why he did not use other inexpensive means, such
as mailing a paper response to the administrative judge.”
Id. at 645.
Turner timely appealed from the Board’s final order.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review a determination of
the Board’s jurisdiction de novo as a question of law, and
review underlying factual findings for substantial evi-
dence. See Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008).
“If a party fails to prosecute or defend an appeal, the
judge may dismiss the appeal with prejudice or rule in
favor of the appellant.” 5 C.F.R. § 1201.43(b). “Where an
appellant’s repeated failure to respond to multiple Board
orders reflects a failure to exercise basic due diligence, the
imposition of the sanction of dismissal for failure to
prosecute has been found appropriate.” Williams v. U.S.
Postal Serv., 116 M.S.P.R. 377, 381 (2011) (citing Ahlberg
v. Dep’t of Health & Human Servs., 804 F.2d 1238, 1242–
45 (Fed. Cir. 1986)).
Turner argues that he has been struggling with men-
tal illness since the beginning of January 2016, which has
prevented him from responding to the AJ’s orders.
Turner claims that the AJ failed to work with him or
provide him a full understanding of her orders, specifical-
ly her request that he consent to the release of his medical
records. Turner alleges that the Agency already had

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TURNER v. MSPB 7
access to his medical records and therefore did not need a
signed release form.
The government responds that the Board correctly
dismissed Turner’s appeal for failure to prosecute. The
government contends that the Board’s decision was rea-
sonable considering that Turner did not appear by tele-
phone at the conference hearing on February 11, 2016,
failed to respond to the Board’s February 2nd, February
17th, March 11th, and April 8th orders, and did not
provide his written consent to release his medical records
pursuant to the Agency’s multiple requests.
We agree with the government that the Board did not
err in dismissing Turner’s appeal for failure to prosecute.
Although dismissal is “the most severe sanction availa-
ble,” Williamson v. Merit Sys. Prot. Bd., 334 F.3d 1058,
1063 (Fed. Cir. 2003), we have approved of such a sanc-
tion where a petitioner was twice warned that failure to
respond would be treated as a failure to prosecute, Ahl-
berg, 804 F.2d at 1243. Here, Turner did not to call in to
the scheduled status conference, did not explain his
failure to do so, and did not respond to orders in each of
his appeals. Although we are sympathetic to Turner’s
financial difficulties, such difficulties do not excuse his
failure to respond to repeated orders. See Johnson v.
Dep’t of Veterans Affairs, 64 M.S.P.R. 257, 259
(1994), aff’d, 56 F.3d 81 (Fed. Cir. 1995). Moreover,
Turner did not raise his medical difficulties to the AJ;
indeed, he only raised those issues in reply to the Agen-
cy’s response to the petitions for review. R.B. 10; R.A. 94.
Even so, Turner did not present the Board with any
documentary evidence establishing that he lacked the
capacity to respond to the AJ’s orders, such as a diagnosis
or letter from a doctor. Accordingly, the Board committed
no reversible error when it dismissed Turner’s appeals.
We have considered Turner’s remaining arguments
but find them unpersuasive. For the foregoing reasons,

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TURNER v. MSPB 8
we affirm the Board’s decision dismissing Turner’s ap-
peals for failure to prosecute.
AFFIRMED
COSTS
No costs.

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