Gregory Turner v. U.S. Postal Service
2016 MSPB 35
MSPB2016Background
- Appellant (pro se) filed multiple appeals against the U.S. Postal Service concerning restoration rights and alleged improper non‑restoration after a supervisor ordered him not to return to work. Two docketed appeals are at issue (AT-0353-14-0838-B-1 and AT-0752-15-0199-I-1).
- Administrative judge scheduled status conferences and repeatedly ordered the appellant to provide an authorization for the Department of Labor to release workers’ compensation records, warning that noncompliance could lead to dismissal for failure to prosecute.
- The appellant failed to appear at the scheduled status conferences and did not provide the requested releases or update contact information, although he registered as an e-filer shortly before the dismissal decisions.
- Administrative judge issued initial decisions (May 24, 2016) dismissing both appeals with prejudice for failure to prosecute; appellant filed identical petitions for review arguing financial inability to access phone/computer caused nonresponse.
- Board consolidated the appeals for review, found repeated noncompliance showed lack of due diligence, rejected appellant’s explanation (financial difficulty) as insufficient, and affirmed the dismissals with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice for failure to prosecute was warranted | Turner: lack of phone/computer due to financial hardship prevented timely responses | Agency: appellant failed to comply with orders and did not participate; sanction appropriate | Affirmed: dismissal appropriate; repeated noncompliance showed failure to exercise due diligence |
| Whether pro se status or confusion about procedures mitigates sanction | Turner: implied that limited resources and possible confusion justify leniency | Agency: no good cause shown; appellant warned and could have used inexpensive alternatives (mail) | Rejected: pro se status/financial difficulty insufficient to avoid dismissal |
| Whether single-order noncompliance standard applies | Turner: did not contest number of orders but argued circumstances | Agency: multiple orders were ignored; central records unobtained | Held: multiple ignored orders distinguishable from single‑order cases; supports dismissal |
| Whether newly offered evidence on review should be considered | Turner submitted Office of Workers’ Compensation Programs material for first time on review | Agency: evidence available earlier; not submitted below | Held: New evidence not considered — appellant did not show it was unavailable with due diligence |
Key Cases Cited
- Leseman v. Department of the Army, 122 M.S.P.R. 139 (Board 2015) (standard for dismissal for failure to prosecute)
- Chandler v. Department of the Navy, 87 M.S.P.R. 369 (Board 2000) (dismissal with prejudice appropriate only when necessary and where party failed to exercise due diligence)
- Ahlberg v. Department of Health & Human Services, 804 F.2d 1238 (Fed. Cir. 1986) (court affirms dismissal for failure to prosecute where party shows negligence)
- Heckman v. Department of the Interior, 106 M.S.P.R. 210 (2007) (failure to obey a single order ordinarily does not justify dismissal)
- Williams v. U.S. Postal Service, 116 M.S.P.R. 377 (2011) (repeated failure to respond to Board orders can justify dismissal)
- Murdock v. Government Printing Office, 38 M.S.P.R. 297 (1988) (complete failure to respond to Board orders warranted dismissal)
- Holland v. Department of Labor, 108 M.S.P.R. 599 (2008) (Board will not reverse administrative judge’s sanction absent abuse of discretion)
- Johnson v. Department of Veterans Affairs, 64 M.S.P.R. 257 (1994) (financial difficulties do not generally constitute good cause to waive filing deadlines)