                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHANE K. HUMMEL,                                DOCKET NUMBER
                  Appellant,                         PH-3330-16-0304-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 20, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Shane K. Hummel, Palmerton, Pennsylvania, pro se.

           Lida V. Kianoury, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal as withdrawn. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the administrative

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review and AFFIRM the initial decision, which is now the Board’s final
     decision. 2 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On May 9, 2016, the appellant filed a Board appeal alleging that the agency
     failed to follow merit promotion procedures when it did not select him for the
     position of Lead Quality Assurance Specialist, GS-1910-12. Initial Appeal File
     (IAF), Tab 1. Because it appeared that the appellant was raising a claim under
     the Veterans Employment Opportunities Act of 1998 (VEOA), the administrative
     judge provided the appellant detailed information concerning the jurisdictional
     requirements and burdens of proof applicable to VEOA appeals.          IAF, Tab 3.
     Subsequently, the appellant submitted a pleading in which he stated the
     following: “I’d like to withdraw my appeal in this case.”        IAF, Tab 5. The
     administrative judge issued an initial decision dismissing the appeal as
     withdrawn. IAF, Tab 6, Initial Decision.
¶3        In his petition for review, the appellant states, without elaboration, that he
     filed his request to withdraw the appeal “prior to a thorough understanding of the




     2
       To the extent the appellant’s petition may be construed as a request to reopen the
     appeal on the Board’s own motion under 5 C.F.R. § 1201.118, we deny his request.
     See Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 9 (2010).
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     process.”    Petition for Review (PFR) File, Tab 1.         The agency has filed a
     response. PFR File, Tab 3.
¶4        Generally, an appellant’s withdrawal of an appeal is an act of finality which
     removes the appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal Service,
     113 M.S.P.R. 486, ¶ 7 (2010).      The withdrawal must be clear, decisive, and
     unequivocal.    Id.   In the absence of unusual circumstances, such as when the
     decision to withdraw was based on misinformation, or the appellant has submitted
     new and material evidence, the Board will not reinstate an appeal once it has been
     withdrawn.     Nazario v. Department of Justice, 108 M.S.P.R. 468, ¶ 4 (2008).
     Here, the appellant’s request to withdraw his appeal was clear, decisive, and
     unequivocal.    He has not alleged or shown that his decision to withdraw was
     involuntary due to misinformation, and he has not submitted any new evidence on
     petition for review.    Consequently, his petition does not meet the criteria for
     review under 5 C.F.R. § 1201.115 and provides no basis for reinstating his
     appeal. See Lincoln, 113 M.S.P.R. 486, ¶ 8.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit. You must submit your request to the
     court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
     2012). If you choose to file, be very careful to file on time. The court has held
     that normally it does not have the authority to waive this statutory deadline and
                                                                                  4

that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
