Rosemarie Santana v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSEMARIE SANTANA, DOCKET NUMBER
Appellant, NY-0752-15-0194-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 30, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Rosemarie Santana, Hampton, Virginia, pro se.
Kathleen M. Ryder, 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 for lack of jurisdiction her appeal of her removal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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 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 establish Board
jurisdiction, as the administrative judge correctly noted, a Postal Service
employee must show that she has completed 1 year of current continuous service
in the same or similar positions and that she is a preference eligible, a
management or supervisory employee, or an employee engaged in personnel work
in other than a purely nonconfidential clerical capacity. 5 U.S.C.
§ 7511(a)(1)(B)(ii); 39 U.S.C. § 1005(a)(4)(A)(ii); Bolton v. Merit Systems
Protection Board, 154 F.3d 1313, 1316 & n.2 (Fed. Cir. 1998); Bynum v. U.S.
Postal Service, 112 M.S.P.R. 403, ¶ 5 (2009), aff’d, 382 F. App’x 934 (Fed. Cir.
2010). The appellant bears the burden of proving by a preponderance of the
evidence that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
¶3 In this case, there is nothing in the record indicating that the appellant was
either preference eligible, a supervisor or a manager, or engaged in personnel
work. The administrative judge issued an order affording the appellant the
opportunity to submit evidence and argument showing that she had the right to
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appeal her removal to the Board, see Initial Appeal File, Tab 3, but the appellant
did not respond to his order. In her petition for review, the appellant asserts that
her removal was improper because it was related to an on-the-job injury, see
Petition for Review File, Tab 1, but she has not submitted any evidence showing
that she was preference eligible, a supervisor or manager, or performed personnel
work. Therefore, we find that the appellant failed to make a nonfrivolous
allegation of jurisdiction and the administrative judge correctly dismissed this
appeal for lack of jurisdiction.
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,
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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 your 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.