Daughrity v. United States Postal Service ( 2004 )

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
04-3100
ODIS L. DAUGHRITY,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
_________________________
DECIDED: December 10, 2004
_________________________
Before LOURIE, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Odis L. Daughrity petitions for review of the final decision of the Merit Systems
Protection Board dismissing his appeal for lack of jurisdiction. Daughrity v. United
States Postal Serv., No. AT-3443-03-0325-I-1 (M.S.P.B. Oct. 31, 2003). We affirm.
BACKGROUND
Daughrity, a former postal worker, applied for a position at the United States
Postal Service (“USPS”). When the USPS subsequently notified Daughrity that he had
been removed from all of its hiring registers, Daughrity appealed his nonselection for a
position to the Board. An administrative judge (“AJ”) dismissed Daughrity’s appeal for
lack of jurisdiction, on the basis that nonselection for a position was not directly
appealable to the Board. Daughrity appealed the AJ’s decision to the full Board, which
denied his petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R.
§ 1201.113(b) (2004).
Daughrity appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2000).
DISCUSSION
Whether the Board has jurisdiction to adjudicate a particular appeal is a question
of law that we review de novo. Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.
Cir. 1999). The Board’s jurisdiction is not plenary; it is limited to adverse personnel
actions expressly made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a)
(2000). We agree with the Board that nonselection for employment is not a matter
within its appellate jurisdiction. See 5 U.S.C. § 7512 (2000).
Statutory prescriptions notwithstanding, Daughrity has not met his burden of
establishing jurisdiction. See Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.
Cir. 1999). There is no indication in the record of the reasons for his removal from the
hiring register. Also, his citation of the Drug Abuse Office and Treatment Act of 1972,
Pub. L. No. 92-255, 86 Stat. 65 (1972) and USPS Handbook EL-312 on “Employment
and Placement” is unavailing as neither provides a basis for conferring jurisdiction on
the Board over an appeal for nonselection.
Accordingly, we discern no error in the Board’s determination that it lacked
jurisdiction to review Daughrity’s nonselection for employment, and therefore affirm.
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