NOTE: This disposition is nonprecedential.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 

______________________ 

FRED L. FREDRICK,-BEY, 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 JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

______________________ 
2 FRED FREDRICK-BEY v. MSPB

Before RADER, Chief Judge, and REYNA, Circuit Judge, 

and DAVIS, Chief District Judge.*

PER 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“Board”) dismissing his appeal as withdrawn.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 crossexamination 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 motivated 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 jurisdiction, 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.

 

 
 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 dismissed 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 voluntarily 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 withdrawn. Because the withdrawal divested the Board of 

jurisdiction, the Board did not consider Petitioner’s arguments that the AJ was biased and that he had committed 

procedural errors.

II

The scope of our review of the Board’s decision is limited 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 without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 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). 
4 FRED FREDRICK-BEY v. MSPB

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 unequivocally withdrew his appeal. The AJ’s affidavit sets 

out at length the steps that the AJ took to inform Petitioner of the consequences of his decision to withdraw. 

We discern nothing misleading or incorrect in the affidavit. Petitioner did not dispute the affidavit, nor did he 

provide significant new evidence for the Board to consider. Because the Board’s decision is in accordance with law 

and is supported by substantial evidence, it is hereby

AFFIRMED