Carlin Sackey v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLIN SACKEY, DOCKET NUMBER
Appellant, NY-0752-15-0098-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 17, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Soledad Nunez, Bridgeport, Connecticut, for the appellant.
Leslie L. Rowe, Esquire, New York, New York, 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 the appellant’s removal appeal for lack of 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 on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 nonpreference-eligible appellant filed a timely appeal with the Board
challenging his removal from the position of Letter Carrier and arguing that his
removal was based on race discrimination. Initial Appeal File (IAF), Tab 1. The
administrative judge issued a show cause order on jurisdiction. IAF, Tab 3. In
the order, the administrative judge informed the appellant of the jurisdictional
issues in his appeal and ordered him to submit evidence and argument to meet his
burden of proving by preponderant evidence that the Board has jurisdiction over
his appeal. Id. at 1. The appellant did not respond to the order, and the
administrative judge dismissed the appeal for lack of jurisdiction without holding
the hearing requested by the appellant. IAF, Tab 5, Initial Decision (ID) at 1.
¶3 In the initial decision, the administrative judge found that the appellant
failed to establish that the Board has jurisdiction over his removal appeal because
there was no dispute that he is not preference-eligible, he held a craft position,
and his bargaining unit was represented by the National Association of Letter
Carriers (NALC). ID at 3; see IAF, Tab 1 at 1, 4, 6. Based on these undisputed
facts, the administrative judge held that the appellant is not an employee with the
right to appeal an adverse action to the Board. ID at 3. The administrative judge
also found that the appellant’s claim of race discrimination was not an
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independent source of Board jurisdiction. Id. The appellant filed a petition for
review arguing the merits of his appeal, and he attached various documents that
have no apparent relevance to the issue of jurisdiction. Petition for Review File,
Tab 1.
¶4 The appellant has the burden of proving by preponderant evidence that the
Board has jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). To
appeal an adverse action under 5 U.S.C. § 7512, a Postal Service employee
(1) must be a preference eligible as defined by 5 U.S.C. § 2108, or a management
or supervisory employee, or an employee engaged in personnel work in other than
a purely nonconfidential, clerical capacity, and (2) must have completed one year
of current, continuous service in the same or similar positions. IAF, Tab 3 at
1; see 39 U.S.C. § 1005(a)(4)(A); 5 U.S.C. § 7511(a)(1)(B)(ii); see also Dodson
v. U.S. Postal Service, 67 M.S.P.R. 84, 86 (1995). On review, the appellant does
not dispute the administrative judge’s finding that he has no right to appeal his
removal because he is not preference-eligible, and he held a craft position in a
bargaining unit represented by NALC. ID at 3. We therefore find no reason to
disturb the initial decision dismissing his appeal for lack of jurisdiction, and we
deny his petition for review.
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.
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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.
If you are interested in securing pro bono representation for an appeal to the
United States 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.