Eric J. Koke v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERIC J. KOKE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2137
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-17-0202-I-1.
______________________
Decided: June 18, 2024
______________________
ERIC J OHN K OKE, SR., Bath, PA, pro se.
D EANNA SCHABACKER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before CHEN, CUNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
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KOKE v. MSPB 2
Eric John Koke appeals pro se a final decision of the
Merit Systems Protection Board (Board) that denied his pe-
tition for review of and affirmed the administrative judge’s
initial decision dismissing Mr. Koke’s appeal for lack of ju-
risdiction. Koke v. U.S. Postal Serv., No. PH-0752-17-0202-
I-1, 2023 WL 3482734 (M.S.P.B. May 16, 2023) (Appx. 1–7)
(Board Decision);1 Koke v. U.S. Postal Serv., No. PH-0752-
17-0202-I-1, 2017 WL 3011853 (M.S.P.B. July 13, 2017)
(Appx. 11–20) (Initial Decision).2 For the following rea-
sons, we affirm.
BACKGROUND
Mr. Koke worked for the United States Postal Service
(USPS) as a Mail Handler over 20 years ago. The USPS
removed him from that position, effective July 13, 2002,
and Mr. Koke challenged that action in an appeal to the
Board filed on August 12, 2002. During a telephonic con-
ference on October 2, 2002, Mr. Koke informed the admin-
istrative judge that he was withdrawing his appeal. The
administrative judge found that the withdrawal was vol-
untary and, citing Jackson v. Department of Air Force, 45
M.S.P.R. 483, 484 (1990), dismissed the appeal for lack of
jurisdiction. See id. (“Withdrawal of an appeal is an act of
finality that removes an appeal from the Board’s jurisdic-
tion.”). That dismissal became final on November 6, 2002.
See 5 C.F.R. § 1201.113.
After withdrawing his appeal, Mr. Koke grieved his re-
moval, leading to an arbitration between the USPS and the
National Postal Mail Handlers Union about his removal.
1 “Appx.” refers to the appendix filed with the gov-
ernment’s informal brief.
2 The electronic version of the Initial Decision at
2017 WL 3011853 does not have page designations. We
therefore cite to the Initial Decision found at Appx. 11–20.
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KOKE v. MSPB 3
Following a hearing, the arbitrator denied the grievance on
July 15, 2003.
More than a decade later, on December 30, 2016,
Mr. Koke filed with the Office of Special Counsel (OSC) a
complaint about possible prohibited personnel practice or
other prohibited activity, related to his 2002 removal as a
USPS Mail Handler. The OSC responded to Mr. Koke by
letter, alerting him that it lacked jurisdiction over the mat-
ter because its jurisdiction does not apply to employees of
the USPS.
Mr. Koke subsequently filed a second appeal with the
Board on March 9, 2017, again challenging his 2002 re-
moval. The USPS moved to dismiss and, on July 13, 2017,
the administrative judge—who presided over and dis-
missed Mr. Koke’s original appeal in 2002—dismissed the
appeal for lack of jurisdiction. Initial Decision at 1–4.3 The
administrative judge found that Mr. Koke “had clearly and
unequivocally withdrawn his appeal” and “made no allega-
tion as to the existence of new and material evidence which
would render void his previous withdrawal.” Id. at 2.
Mr. Koke timely petitioned for review of the Initial De-
cision by the full Board. On May 16, 2023, the Board de-
nied Mr. Koke’s petition and affirmed the Initial Decision
dismissing the appeal. Board Decision, 2023 WL 3482734,
at *1. The Board “agree[d] with the analysis in the [I]nitial
[D]ecision that [Mr. Koke] failed to make a nonfrivolous al-
legation of Board jurisdiction.” Id.
Mr. Koke appeals, requesting $5 million in compensa-
tory damages, $3 million in punitive damages, and to be
3 The Initial Decision was originally incorrectly
dated July 11, 2017. In an erratum dated August 24, 2017,
the date of the Initial Decision was corrected to July 13,
2017.
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KOKE v. MSPB 4
the United States postmaster general for one month. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of Board decisions is limited by statute. We
must affirm the Board’s decision unless we find that it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “Whether the board had jurisdiction 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). We review factual findings that affect the juris-
dictional inquiry for substantial evidence. Lentz v. Merit
Sys. Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017).
The Board has long held that “withdrawal of an appeal
is an act of finality that removes the appeal from the
Board’s jurisdiction, and . . . the Board will not reinstate
an appeal once it has been withdrawn in the absence of un-
usual circumstances such as misinformation or new and
material evidence.” Brown v. Dep’t of the Navy, 71
M.S.P.R. 451, 453–54 (1996).
Mr. Koke does not argue that the Board and the admin-
istrative judge erred in determining that the Board lacks
jurisdiction to reopen and hear his appeal challenging his
removal. Mr. Koke does not dispute that he withdrew his
appeal with the Board and instead challenged his 2002 re-
moval through grievance-arbitration procedures. He does
not contend that misinformation contributed to his decision
to withdraw his appeal in order to pursue grievance-arbi-
tration procedures. Nor does he point to any alleged new
and material evidence that the Board and the administra-
tive judge overlooked in determining whether he estab-
lished unusual circumstances warranting reinstatement of
the appeal. Nonetheless, we have reviewed the Board’s
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KOKE v. MSPB 5
decision and see no error in the Board’s conclusion that it
lacks jurisdiction.
Instead, Mr. Koke makes three arguments on appeal.
We address each in turn.
First, Mr. Koke asserts that because he is a disabled
veteran “there is no time limit to file a [Uniformed Services
Employment and Reemployment Rights Act (USERRA)]
[a]ppeal with the Board.” Pet’r’s Informal Br. at 2 (citing
38 U.S.C. § 4324(a), (b)). But this appeal does not involve
a claim under USERRA. Nor was Mr. Koke’s appeal to the
Board dismissed for untimeliness.
Second, Mr. Koke alleges a violation of his constitu-
tional right to due process by the USPS’s failure to preserve
evidence relating to his 2002 removal in anticipation that
Mr. Koke might seek to reopen his appeal, more than a dec-
ade after it was first dismissed by the Board and after the
conclusion of an arbitration denying Mr. Koke’s grievance
of the same removal. Pet’r’s Informal Br. 2–3. Mr. Koke
contends that “[t]he [g]overnment has a duty to preserve
certain types of [e]vidence it collects during criminal inves-
tigations and prosecutions” in order to “protect a defend-
ant’s rights to” due process. Id.
Mr. Koke cites no legal support for this argument,
which, in any event, would be inapplicable to Mr. Koke in
these proceedings related to his removal. The USPS is not
a law enforcement agency, and Mr. Koke’s removal did not
make him a defendant in a criminal prosecution. Mr. Koke
has not established that the USPS had a duty to preserve
the evidence relating to his removal or that Mr. Koke’s
right to due process was violated by the USPS’s failure to
do so.
Finally, Mr. Koke contests the facts underlying his re-
moval, and further states that removal based on his alleged
conduct would violate his right to freedom of speech under
the First Amendment. Pet’r’s Informal Br. 3–4. But the
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KOKE v. MSPB 6
Board did not address the merits of Mr. Koke’s removal be-
cause it determined that it lacked jurisdiction over his ap-
peal.
CONCLUSION
We have considered Mr. Koke’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Board’s decision.
AFFIRMED
COSTS
No costs.
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