Fred L. Fredrick-Bey v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRED L. FREDRICK-BEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3165
______________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752110799-I-1.
______________________
Decided: February 8, 2013
______________________
F RED L. F REDRICK,-B EY , of Temple Hills, Maryland,
pro se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were J AMES M.
EISENMANN, General Counsel, and K EISHA D AWN B ELL ,
Deputy General Counsel.
______________________

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FRED FREDRICK- BEY v. MSPB 2
Before RADER, Chief Judge, and REYNA, Circuit Judge,
and D AVIS , Chief District Judge.*
P ER CURIAM .
Petitioner Fred L. Frederick-Bey seeks review from a
final decision of the Merit Systems Protection Board (the
“Board”) dismissing his appeal as withdrawn. Because
Petitioner voluntarily withdrew his appeal after being
informed of the consequences, we affirm.
I
After Petitioner was removed from his position as a
meat cutter at an Arlington facility of the Department of
Defense (the “agency”), he filed an appeal with the Board.
An administrative judge (“AJ”) held a hearing at which
Petitioner represented himself. During Petitioner’s cross-
examination of a witness, the AJ ordered Petitioner to
move on to a different line of questioning. Petitioner
objected, and the AJ informed him that his objection was
noted for the record, and that he could petition for review
if he was dissatisfied with the ultimate outcome.
Petitioner remained unhappy with the AJ’s decision to
limit his cross-examination, which he claims was motivat-
ed by racial bias. After “further discussion” with the AJ,
Petitioner “stated that he was withdrawing his appeal
and began to gather his personal belongings.” The AJ
explained to Petitioner that the withdrawal of an appeal
would forever remove this case from the Board’s jurisdic-
tion, and asked Petitioner if he understood. Petitioner
responded that his withdrawal “means whatever you
want it to mean.” The AJ asked a second time whether
Petitioner understood that a withdrawal was final.
* Honorable Leonard Davis, Chief Judge, United
States District Court for the Eastern District of Texas,
sitting by designation.

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FRED FREDRICK- BEY v. MSPB 3
Petitioner again did not directly answer, but stated his
intent to pursue his claim with the Equal Employment
Opportunity Commission. As Petitioner finished packing,
the AJ informed him that if he left the hearing room
without answering, the AJ would consider his departure
to be an indication that Petitioner understood that his
withdrawal was final and that his appeal would be dis-
missed with prejudice to refiling. Petitioner left the room
without further comment.
Petitioner then petitioned the Board for review of the
AJ’s decision. The Board found that Petitioner had volun-
tarily and unequivocally withdrawn his appeal, and that
he had not shown that his decision to withdraw was
involuntary or due to misinformation. Accordingly, the
Board affirmed the decision to dismiss the case as with-
drawn. Because the withdrawal divested the Board of
jurisdiction, the Board did not consider Petitioner’s argu-
ments that the AJ was biased and that he had committed
procedural errors.
II
The scope of our review of the Board’s decision is lim-
ited by statute. We may set aside the Board’s decision if
it is “(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). None of these apply to this
case.
As the Board correctly observed, the dismissal of an
appeal as withdrawn is an act of finality and, absent
unusual circumstances such as misinformation or new
and material evidence, the Board will not reinstate an
appeal once it has been withdrawn. See, e.g., Fox v. Dep’t
of Transportation, 66 M.S.P.R 12, 13 (1994). “A voluntary
withdrawal must be clear, decisive, and unequivocal.”
Lincoln v. U.S. Postal Svc., 113 M.S.P.R. 486, 490 (2010).

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FRED FREDRICK- BEY v. MSPB 4
Petitioner’s argument on appeal is that the AJ restricted
his cross-examination of the witness. But this is not an
unusual circumstance, nor is it new or material evidence.
Furthermore, substantial evidence supports the
Board’s conclusion that Petitioner voluntarily and une-
quivocally withdrew his appeal. The AJ’s affidavit sets
out at length the steps that the AJ took to inform Peti-
tioner of the consequences of his decision to withdraw.
We discern nothing misleading or incorrect in the affida-
vit. Petitioner did not dispute the affidavit, nor did he
provide significant new evidence for the Board to consid-
er. Because the Board’s decision is in accordance with law
and is supported by substantial evidence, it is hereby
AFFIRMED

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