                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
                citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                          04-3204


                                LAWRENCE R. HARTMAN,

                                                         Petitioner,

                                              v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                         Respondent.

                           ______________________________

                            DECIDED: April 28, 2005
                           ______________________________



PER CURIAM.

          The Merit Systems Protection Board (“Board”) dismissed a request for corrective

action because the appellant voluntarily had dismissed a prior appeal to the Board that

had challenged the same personnel action and had not shown extraordinary

circumstances that would warrant reinstating his appeal. Hartman v. Dep’t of Veterans

Affairs, No. CH-1221-03-0500-W-1 (M.S.P.B. June 27, 2003) (“Initial Decision”). We

affirm.
                                              I

         In June 2000, the Department of Veterans Affairs removed the petitioner

Lawrence R. Hartman for inability to perform his duties and unauthorized absence.

Hartman appealed the action to the Board, but after he was granted disability

retirement, he voluntarily withdrew his appeal, which the Board dismissed in August

2000.

         He then filed a complaint with the Office of Special Counsel (“Office”). In 2003

the Office informed him that it was closing its file. It pointed out that under 5 U.S.C.

§ 7121(g)(2) an aggrieved employee could elect “not more than one” of the following

remedies: “(1) to exercise his right to pursue this matter under his agency’s negotiated

grievance procedure, if any; (2) to file a timely appeal to the Merit Systems Protection

Board; or (3) to submit a complaint to the Office of Special Counsel.” It stated that “[t]he

fact that you had an appeal pending before the Board is evidence of your election of

remedies; thus, establishing our lack of jurisdiction.” It also stated that he could file a

request for corrective action with the Board. Letter from Office to Hartman (Feb. 19,

2003).

         Hartman filed such a request. In his initial decision, which became final when the

Board denied review, the Board’s administrative judge dismissed the request for

corrective action. The administrative judge stated:

                     The record shows the appellant withdrew his first
               MSPB appeal, which challenged the removal action that
               forms the basis for the instant request for corrective action.
               Withdrawal of an appeal is an act of finality that removes the
               underlying action from the MSPB’s jurisdiction, and the
               appeal will not be reinstated in the absence of unusual
               circumstances, such as where the decision to withdraw was
               based on misleading or incorrect information . . .



04-3204                                      2
               [T]he record does not indicate the sort of unusual
               circumstances that would justify reinstating the appellant’s
               prior MSPB appeal. Consequently, his request for corrective
               action must be dismissed.
                       Although OSC’s February 13, 2003 letter invited the
               appellant to file a request for corrective action with the
               MSPB, an erroneous notice of appeal rights does not create
               a right of appeal where one would not otherwise exist.

Initial Decision at 3-4.

                                              II

       As the Office noted, under 5 U.S.C. § 7121(g)(2), Hartman was required to elect

only one of three remedies. By filing a timely appeal with the Board, Hartman made his

election and he was precluded from later seeking relief from the Office. See Thurman v.

Dep’t of Def., 77 M.S.P.R. 598, 600-01 (1998); Collins v. Dep’t of Transp., 89 M.S.P.R.

582, 587-88 (2001). Hartman’s voluntary dismissal of his appeal to the Board did not

vitiate his earlier election to invoke that remedy.

       The Board’s settled practice apparently is that an appellant’s voluntary

withdrawal of an appeal to it precludes the Board from reinstating the appeal unless

there are unusual circumstances. See Drummond v. Dep’t of Def., 91 M.S.P.R. 231,

233 (2002); Gallegos v. Fed. Deposit Ins. Corp., 90 M.S.P.R. 159, 161 (2001); Roberts

v. Dep’t of Veterans Affairs, 52 M.S.P.R. 168, 171 (1991). As the administrative judge

correctly stated, the fact that the Office told Hartman that he could seek corrective

action from the Board does not create a right of appeal where one would not otherwise

exist. See Mosher v. United States Postal Serv., 32 M.S.P.R. 355, 357 (1987).

       We have no reason to reject the administrative judge’s conclusion that Hartman

had not shown “the sort of unusual circumstances that would justify reinstating the

appellant’s prior MSPB appeal.” The Board justifiably concluded that Hartman having



04-3204                                       3
“manifested signs of mental illness” did not amount to such unusual circumstances.

The Board also noted that Hartman “has not alleged that he relied on misleading or

incorrect information in reaching his decision to withdraw his first MSPB appeal.” Initial

Decision at 3. Consequently, the Board’s dismissal of Hartman’s request for corrective

action was proper.

                                     CONCLUSION

      The Board’s dismissal of Hartman’s request for corrective action is affirmed.




04-3204                                     4
