Alesia Claxton Mitchell v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESIA CLAXTON MITCHELL, DOCKET NUMBER
Appellant, DC-3443-16-0164-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 25, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Casanova Hambrick, Clarkton, North Carolina, for the appellant.
Tanisha J. Locke, Esquire, Charlotte, North Carolina, 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 this 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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, an EAS-17 Supervisor for the U.S. Postal Service, filed an
appeal on November 24, 2014, challenging a proposed letter of warning in lieu of
a 7-day suspension, which she received on September 16, 2015. Initial Appeal
File (IAF), Tab 1. The administrative judge issued an order notifying the
appellant of the Board’s timeliness and jurisdictional requirements and directing
her to file evidence and argument showing that the Board has jurisdiction over
her claims and that her appeal was timely filed. IAF, Tab 4. The agency
responded by filing a motion to dismiss the appeal for lack of jurisdiction. IAF,
Tab 5. The appellant did not respond to the order or oppose the agency’s motion
to dismiss her appeal.
¶3 Without holding the hearing requested by the appellant, the administrative
judge granted the agency’s motion and dismissed the appeal for lack of
jurisdiction. IAF, Tab 6, Initial Decision (ID). The administrative judge also
found that the appellant filed an untimely appeal and that she offered no evidence
or argument that her appeal was timely filed or that she had good cause for filing
late. ID at 2-3. The appellant filed a petition for review of the initial decision,
and the agency responded in opposition to her petition. Petition for Review
(PFR) File, Tabs 1, 3.
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); 5 C.F.R. § 1201.3(a). Under
5 U.S.C. § 7512, the Board may entertain appeals to review the following adverse
agency actions: (1) a removal; (2) a suspension for more than 14 days; (3) a
reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less.
The warning letter issued by the U.S. Postal Service, on which the appellant bases
her appeal, falls outside these statutory categories.
¶5 On review, the appellant asks the Board to reopen her case so that she can
receive due process on the proposed letter of warning she received from the
agency. PFR File, Tab 1 at 3. The appellant, however, does not dispute the
administrative judge’s findings that the Board has no jurisdiction over her appeal.
ID at 3-4. Because the appellant’s arguments on review present no basis for
disturbing the initial decision dismissing her appeal for lack of jurisdiction, we
find that the administrative judge properly dismissed this appeal for lack of
jurisdiction and we need not address the timeliness of this appeal. 2
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
2
On review, the appellant also states that she is still waiting for the agency to respond
to her discovery request. PFR File, Tab 1 at 3. There is no indication that the appellant
filed a motion to compel discovery during the proceeding below consistent with the
Board’s regulations regarding timely discovery. See 5 C.F.R. § 1201.73. Accordingly,
her argument provides no basis for disturbing the initial decision.
4
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 U.S. 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.