Colin J. Green v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLIN J. GREEN, DOCKET NUMBER
Appellant, SF-0752-15-0700-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 4, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Zedie E. Ramage, Jr., Fresno, California, for the appellant.
Gregory Brumfield, Jr., Esquire, San Diego, California, 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 his 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 the facts of the case; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 The appellant was removed from his position as a U.S. Postal Service
Custodian effective June 13, 2015, based on unacceptable conduct. Initial Appeal
File (IAF), Tab 5 at 15-19. The appellant has filed an appeal challenging the
removal and alleging that the agency discriminated against him based on his age,
race, color, disability, national origin, sex, and religion. IAF, Tab 1. The agency
filed a motion to dismiss, arguing that the appeal should be dismissed for lack of
jurisdiction because the appellant was not a preference eligible and did not
otherwise qualify as an employee with appeal rights to the Board. IAF, Tab 5
at 7-9. The administrative judge issued an order advising the appellant of the
requirements to establish jurisdiction over an adverse action appeal and ordering
him to show cause why the appeal should not be dismissed for lack of
jurisdiction. IAF, Tab 6. In his response, the appellant did not assert that he met
the requirements of 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1). He argued,
however, that the Board has jurisdiction over his appeal because the agency’s
letter of decision indicated that he had appeal rights to the Board. IAF, Tab 7.
The administrative judge found that the appellant was not an employee with
adverse action appeal rights and dismissed the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID).
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¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
¶4 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). A U.S. Postal Service
employee may file a Board appeal under 5 U.S.C. chapter 75 only if he is covered
by 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1)(B)(ii). See 5 U.S.C.
§ 7511(b)(8). Thus, to appeal an adverse action under chapter 75, a Postal
employee (1) must be a preference eligible, 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. Toomey v. U.S. Postal
Service, 71 M.S.P.R. 10, 12 (1996).
¶5 On review, the appellant does not argue that the administrative judge erred
in finding that he did not have preference-eligible status, was not a manager or
supervisor, and was not engaged in personnel work in other than a purely
nonconfidential status. ID at 2-3. Instead, he continues to argue that the Board
has jurisdiction over his appeal because the agency’s notice of decision advised
him that he had rights to appeal to the Board. PFR File, Tab 1. This argument is
unavailing. It is well settled that an agency error in notifying an appellant of a
possible right to a Board appeal does not serve to confer jurisdiction on the
Board. Miles-Townsend v. U.S. Postal Service, 37 M.S.P.R. 405, 407 (1988).
Regarding the appellant’s discrimination claims, in the absence of an otherwise
appealable action, the Board cannot consider his affirmative defenses based on
discrimination as an independent source of jurisdiction. Wren v. Department of
the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.3d 867, 871-73 (D.C. Cir. 1982).
¶6 In sum, the administrative judge correctly dismissed the appeal for lack of
jurisdiction. Nothing in the petition for review shows error in the administrative
judge’s well-reasoned initial decision and there is no basis to disturb it.
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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. 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 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.