Fortenberry v. Merit Systems Protection Board ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3110
ALBRICE N. FORTENBERRY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Albrice N. Fortenberry, of Chicago, Illinois, 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 B. Chad Bungard,
General Counsel, Rosalyn Wilcots, Acting Deputy General Counsel, and Stephanie M.
Conley, Acting Assistant General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3110
ALBRICE N. FORTENBERRY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in
CH3443070584-I-1.
____________________________
DECIDED: July 11, 2008
____________________________
Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE,
Circuit Judge.
PER CURIAM.
DECISION
Albrice Fortenberry appeals from the final decision of the Merit Systems
Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. Fortenberry v.
Merit Sys. Prot. Bd., CH-3443-07-0584-I-1 (M.S.P.B. October 23, 2007). Because
Fortenberry has not demonstrated that the Board abused its discretion or otherwise
committed legal error in its decision, we affirm.
BACKGROUND
Fortenberry was a mail handler for the United States Postal Service (“USPS”) in
Chicago, Illinois for nearly ten years. He resigned from his position at USPS, effective
January 12, 1994. After resigning his employment, Fortenberry was incarcerated for a
period of time. He was released on May 4, 2007. Upon his release he applied for
reinstatement with USPS. On August 2, 2007, Fortenberry filed an appeal to the Board
claiming that USPS had unlawfully denied his reinstatement request. Fortenberry
claimed that he was told by USPS that ex-felons were not employable at the agency,
while the U.S. Department of Labor informed him that USPS could in fact employ ex-
felons. Furthermore, he claimed that USPS was required to place him at the top of the
list of applicants due to his status as a veteran.
On August 2, 2007, the administrative judge (“AJ”) issued an acknowledgement
order finding that the Board lacked jurisdiction over USPS’s denial of reinstatement,
because Fortenberry had not made a non-frivolous claim that he had an appealable
action under 5 C.F.R. § 352 or 5 C.F.R. § 353. Those regulations set forth appealable
actions as including reemployment requests following a compensable, work-related
injury, a return from military duty, and following a reduction in force. Failure to reemploy
an ex-felon is not included as an appealable action. The AJ also found that
Fortenberry’s veterans claim required further evidence to establish Board jurisdiction.
The order instructed him to file a response stating the date of the agency’s alleged
violation, the date that he filed a complaint with the Secretary of Labor, and the date that
he received written notification, if any, from the Department of Labor. Fortenberry
responded to the order, but did not address the Board’s jurisdiction or any
correspondence with the Secretary of Labor.
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On October 23, 2007, the AJ issued an initial decision dismissing Fortenberry’s
appeal for lack of jurisdiction. The AJ found that Fortenberry did not raise a non-
frivolous claim under 5 C.F.R. § 352 or 5 C.F.R. § 353, nor did he allege that a
complaint had been submitted to the Secretary of Labor within 60 days of USPS’s
alleged violation, as required under 5 U.S.C. § 3330a.
Fortenberry timely appealed to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). The Board’s jurisdiction is limited to actions
specifically made appealable by law, rule, or regulation. 5 U.S.C. § 7701(a); see Todd
v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1576 (Fed. Cir. 1995). Fortenberry, as the
appellant, must show by a preponderance of evidence that the Board has jurisdiction
over his claim. 5 C.F.R. § 1201.56(a)(2)(i).
Fortenberry has not shown that the Board had jurisdiction to hear his appeal. He
has not alleged that his appeal meets any standard for Board jurisdiction found in any
law, rule, or regulation. Rather, he alleges that USPS incorrectly believes that ex-felons
cannot work at the agency. That question - whether ex-felons may or may not be
employed by USPS - is not the issue before us, however. Even if Fortenberry were
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correct in his assertion that ex-felons may be employable, USPS’s alleged
misinterpretation of applicable labor laws still does not create a Board-appealable
action. Similarly, the alleged misinformation provided by USPS to Fortenberry
regarding his employability with the agency does not establish Board jurisdiction.
Fortenberry also argues that his status as a veteran entitles him to reemployment
with USPS. The AJ construed this argument as a Veterans Employment Opportunity
Act of 1998 (“VEOA”) claim. We similarly construe Fortenberry’s claim. To establish
Board jurisdiction based on VEOA, Fortenberry must show that he filed an appeal with
the Secretary of Labor within 60 days after the date of the agency’s violation. See 5
U.S.C. § 3330a. Fortenberry has not claimed that he ever filed a complaint with the
Department of Labor. Thus, the Board lacks jurisdiction over his VEOA claim.
Fortenberry has not demonstrated that the Board abused its discretion or
otherwise committed legal error. Accordingly, we affirm the Board’s decision.
No costs.
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