Randy Nmn Zapata v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY ZAPATA, DOCKET NUMBER
Appellant, AT-0752-14-0360-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Randy Zapata, Miami-Gardens, Florida, pro se.
Ronald E. Jones, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged reduction in grade or pay for lack of Board
jurisdiction. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the 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, and based on the
following points and authorities, 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. 5 C.F.R. § 1201.113(b).
¶2 The appellant was reassigned from the position of Mail Processing Clerk to
the position of City Carrier without a loss of pay when the facility where he
worked was closed. Initial Appeal File (IAF), Tab 5 at 8-10, 21. He filed this
appeal alleging that he was reduced in grade or pay, given a negative suitability
determination, and that the agency failed to restore or improperly restored him to
duty after he suffered a compensable injury. IAF, Tab 1 at 3.
¶3 The record showed that the appellant is not a management or supervisory
employee, nor is he an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity. IAF, Tab 5 at 7. He is not a preference
eligible. IAF, Tab 1 at 1, Tab 5 at 12. His PS-50 forms show a reassignment to a
different position at an equivalent grade without any loss of pay. IAF, Tab 5 at 8,
10. The record also includes a September 16, 2013 letter from the District
Reasonable Accommodation Committee denying his requested reasonable
accommodation. Id. at 21. The letter states that he was unable to perform the
duties of a Mail Processing Clerk and that the “data entry clerk” position
requested by his physician was unavailable. Id.
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¶4 The appellant did not respond to the administrative judge’s order regarding
his jurisdictional burdens for adverse action and restoration to duty appeals. See
IAF, Tab 4. Accordingly, the administrative judge found that the appellant failed
to allege any facts that would bring the appeal within the Board’s jurisdiction.
IAF, Tab 6, Initial Decision (ID) at 3. The administrative judge also found that
the Board lacked jurisdiction to decide any affirmative defenses that the appellant
might have raised. ID at 3. Accordingly, the administrative judge dismissed the
appeal. ID at 3.
¶5 The administrative judge decided the appeal correctly. The Board’s
jurisdiction is not plenary; it is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have jurisdiction
over all matters involving a federal employee that are allegedly unfair or
incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). The
appellant bears the burden of proof on the issue of the Board’s
jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶6 A preference eligible, a management or supervisory employee, or an
employee engaged in personnel work in other than a purely nonconfidential
clerical capacity in the U.S. Postal Service who has completed 1 year of current
continuous service in the same or similar positions may appeal a reduction in
grade or pay to the Board. See 5 U.S.C. §§ 7511(a)(1)(B), 7512(3), (4), 7513(d);
Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 6 (2008). As the record
shows and the administrative judge correctly found, the appellant is not a
preference eligible; his past and present positions are neither managerial nor
supervisory; and he is not engaged in personnel work in other than a purely
nonconfidential clerical capacity. IAF, Tab 1 at 1, Tab 5 at 7-8, 10 12. His
PS-50 forms do not show a loss of pay or grade because of the position change.
IAF, Tab 5 at 8-10. Other than his bare allegation on the appeal form, see IAF,
Tab 1 at 3, the appellant offered nothing to show that he was seeking restoration
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after a compensable injury. Accordingly, we find no basis for the Board to
exercise jurisdiction over this matter.
¶7 We also note that the appellant’s petition for review is late-filed. A petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the petitioner shows that the initial decision was received more
than 5 days after the date of issuance, within 30 days after the date the petitioner
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on March 18, 2014. ID at 1. The initial decision states that it would
become the Board’s final decision on April 22, 2014, in the absence of a petition
for review or a Board decision to reopen the case on its own motion. ID at 3. On
August 27, 2014, the appellant sent the regional office a letter requesting
reconsideration of the appeal. Petition for Review (PFR) File, Tab 1. The
appellant stated that he did not receive the initial decision and that he had been
unable to determine whether it had been issued from the Board’s e-Appeal
system. Id. at 2. Board records show that the initial decision was served by
electronic mail on the date of issuance. See IAF, Tabs 6, 7. The finality date of
April 22, 2014, thus applies.
¶8 The Board will waive its time limit for filing only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). A late-filed petition for
review must be accompanied by a motion that shows good cause for the untimely
filing, unless the Board has specifically granted an extension of time or a motion
for an extension is pending. Id. The motion must be accompanied by an affidavit
or statement signed under penalty of perjury, which includes the reasons for
failing to request an extension before the filing deadline; and a specific and
detailed description of the circumstances causing the late filing, accompanied by
supporting documentation or other evidence. Id. The Office of the Clerk of the
Board informed the appellant of his burden to show good cause and of the
applicable regulations. PFR File, Tab 2. The Clerk’s letter included a copy of
the Board’s standard affidavit/signed statement. Id. at 7-8. The appellant did not
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respond to the Clerk’s letter. In light of our dismissal of this appeal based on
jurisdiction, however, we need not address whether the appellant showed good
cause for the delay. See Taylor v. Department of the Army, 107 M.S.P.R. 638, ¶ 1
(2008).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 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 United States 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 United
States 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.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.