Kelly J. Planck v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLY J. PLANCK, DOCKET NUMBER
Appellant, DA-0752-15-0512-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 12, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James C. Latham, Amarillo, Texas, for the appellant.
Paul C. Wolf, Esquire, Dallas, Texas, 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 appeal of her removal 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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. 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. 5 C.F.R. § 1201.113(b).
¶2 Effective June 20, 2015, the appellant was removed from her position as a
City Carrier at the U.S. Postal Service based on unacceptable conduct. Initial
Appeal File (IAF), Tab 6 at 31-32. The appellant appealed her removal and
requested a hearing. IAF, Tab 1 at 1. The administrative judge issued an
acknowledgment order advising the appellant of the requirements for establishing
jurisdiction over her adverse action appeal and ordering her to submit evidence
establishing that the Board had jurisdiction over her appeal. IAF, Tab 2 at 2. The
appellant did not respond, and the agency filed a motion arguing that the appeal
should be dismissed for lack of jurisdiction because, among other things, the
appellant was not preference eligible and did not otherwise qualify as an
employee with adverse action appeal rights before the Board. IAF, Tab 6 at 6-8.
¶3 On August 17, 2015, the administrative judge issued an order directing the
appellant to show cause why the appeal should not be dismissed for lack of
jurisdiction. IAF, Tab 7. In her response, the appellant admitted that she was not
a preference-eligible veteran, a supervisor or manager, or an employee engaged in
personnel work in other than a purely nonconfidential clerical capacity. IAF,
Tab 9 at 1, 6. She argued, though, that she should be considered a preference
eligible because her father, brother, and some uncles had served in the military.
Id. at 1, 3, 6. The administrative judge dismissed the appeal for lack of
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jurisdiction based on the parties’ written submissions because she found that the
appellant had failed to raise a nonfrivolous allegation entitling her to a hearing.
IAF, Tab 11, Initial Decision.
¶4 In her petition for review, the appellant continues to argue that she should
have adverse action appeal rights based on the military service of her father,
brother, and uncles. 2 Petition for Review (PFR) File, Tab 1 at 2. The agency has
responded in opposition arguing that the relevant statutes do not confer
preference-eligible status based on these familial relationships. PFR File, Tab 3
at 8-10. We agree.
¶5 The appellant bears the burden of establishing Board jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i). The Board’s
jurisdiction 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). To have adverse action appeal rights to the Board, a
Postal employee such as the appellant, (1) must be an excepted-service,
preference-eligible employee, 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 1 year of current continuous
service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B); 39 U.S.C.
§ 1005(a)(4)(A); Trabue v. U.S. Postal Service, 102 M.S.P.R. 14, ¶ 5 (2006). In
this context, a preference eligible generally means a veteran who served on active
duty in the armed forces during specific periods of time, and who has been
discharged or released from active duty in the armed forces under honorable
conditions, 5 U.S.C. § 2108(1)(C), (3)(A)-(B), a disabled
2
The appellant does not dispute on review the administrative judge’s finding that she
was not a manager, supervisor, or an employee engaged in personnel work in other than
a purely nonconfidential clerical capacity, Initial Decision at 3, and we discern no basis
for disturbing this finding.
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veteran, 5 U.S.C. § 2108(3)(C), or in some cases, a widow or widower, spouse, or
mother of a veteran, 5 U.S.C. § 2108(3)(D)-(G).
¶6 An appellant is entitled to a hearing if she raises a nonfrivolous allegation
of Board jurisdiction over her appeal. See Edwards v. Department of the Air
Force, 120 M.S.P.R. 307, ¶ 6 (2013). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). An
allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual makes an allegation that is more than conclusory,
plausible on its face, and material to the legal issues in the appeal. Id.
¶7 Based on the record before her, the administrative judge correctly found
that the appellant failed to make a nonfrivolous allegation that she is preference
eligible as defined in 5 U.S.C. § 2108. The appellant’s assertion that her father,
brother, and uncles were honorably discharged from the military is not sufficient
to raise a nonfrivolous allegation of Board jurisdiction over her appeal. PFR File,
Tab 1. Even if these relatives were preference eligible, a child, sister, or niece of
a preference-eligible veteran is not a preference-eligible employee. See 5 U.S.C.
§ 2108(3); Alley v. U.S. Postal Service, 100 M.S.P.R. 283, ¶¶ 7-8 (2005) (finding
that a child or niece of a preference eligible is not a preference eligible).
¶8 Thus, we find that the appellant has failed to make a nonfrivolous allegation
that she is a preference eligible, and the administrative judge properly dismissed
this appeal for lack of jurisdiction. 3
3
Although the appellant’s appeal contained no suggestion that she had a compensable
injury or had served in the uniformed services, she checked a box on her appeal form
describing one of the acts she was appealing as failure to restore/reemploy/reinstate.
IAF, Tab 1 at 2. The administrative judge noted this in the show cause order and
provided the appellant with information regarding what was required to establish Board
jurisdiction over a claim that the agency failed to restore her to duty after a
compensable injury or following uniformed service. IAF, Tab 7 at 2. The appellant
failed to provide any documents or argument regarding these claims in her response,
and she has not raised the issue on review. IAF, Tab 8; PFR File, Tab 1. Because the
record lacks any evidence or allegation that the appellant suffered a compensable injury
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¶9 Finally, the appellant alleges that the administrative judge felt “negativity”
towards her representative based on his involvement in an unrelated case.
PFR File, Tab 1 at 3. To the extent she is making a claim of bias or prejudice
against the administrative judge, the appellant must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002).
Here, the appellant fails to allege that the administrative judge acted
inappropriately or otherwise displayed any evidence of bias against herself or her
representative. We find no indication that the administrative judge was biased in
her adjudication of this appeal.
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. 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
or served in the uniformed services, we find that 5 C.F.R. part 353 does not provide a
basis for jurisdiction in this matter.
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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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.