NOTE: This disposition is nonprecedential.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

______________________ 

GREGORY TURNER, Memphis, TN, pro se.

KATHERINE MICHELLE SMITH, Office of the General 

Counsel, United States Merit Systems Protection Board, 

Washington, DC, for respondent. Also represented by 

BRYAN G. POLISUK. 

______________________ 

Before LOURIE, REYNA, and STOLL, Circuit Judges.

PER CURIAM. 
2 TURNER v. MSPB

Gregory Turner (“Turner”) seeks review of the consolidated 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 compensable 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 decision of the Board. See 5 C.F.R. § 1201.113.

On September 27, 2013, Turner filed a petition for enforcement 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 
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 guidelines, 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 February 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 
4 TURNER v. MSPB

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 orders directing Turner to send the Agency authorization to 

obtain his medical records by March 21, 2016 and ordering 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. 
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 dismissing both of Turner’s appeals for failure to appear at 

the telephone status conference, failure to keep his contact 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 Understanding 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 
6 TURNER v. MSPB

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). 

DISCUSSION

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 without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 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 evidence. 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 mental 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, specifically her request that he consent to the release of his medical 

records. Turner alleges that the Agency already had 
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 reasonable considering that Turner did not appear by telephone 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 available,” Williamson v. Merit Sys. Prot. Bd., 334 F.3d 1058, 

1063 (Fed. Cir. 2003), we have approved of such a sanction where a petitioner was twice warned that failure to 

respond would be treated as a failure to prosecute, Ahlberg, 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 Agency’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, 
8 TURNER v. MSPB

we affirm the Board’s decision dismissing Turner’s appeals for failure to prosecute.

AFFIRMED

COSTS

No costs.