Sara S. Reed v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SARA S. REED, DOCKET NUMBER
Appellant, DC-0752-13-6791-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 5, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sara S. Reed, Brentwood, Maryland, pro se.
Elinor L. Crowley, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal concerning a last chance agreement (LCA) 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to 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 On June 5, 2013, the agency proposed to remove the appellant from her
position as a Mailhandler based on a charge of Unsatisfactory Attendance/Absent
Without Leave. See Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 9. However,
the parties subsequently entered into an LCA, which was fully executed on
August 9, 2013. IAF, Tab 4 at 9-10.
¶3 The appellant filed an appeal with the Board on September 9, 2013. IAF,
Tab 1. She indicated that she was appealing the August 9, 2013 LCA, which she
appears to allege was obtained under duress. Id. at 3. She requested a hearing.
Id. at 2.
¶4 On October 29, 2013, the agency moved to dismiss the appeal for lack of
jurisdiction, arguing that the appellant failed to meet her burden to establish
Board jurisdiction over her appeal, as required under 5 C.F.R. § 1201.56(a)(2),
because the mere fact that the parties entered into an LCA is not one of the
actions over which the Board has jurisdiction as set forth at 5 U.S.C. § 7512
and 5 C.F.R. § 1201.3(a). IAF, Tab 4 at 4-6. The appellant did not respond to the
agency’s motion. Notably, the appellant had indicated on her initial appeal form
that she wished “to provide a detailed account” and “send in [her]
3
documentation”; however, she never filed any additional evidence or argument to
explain the basis for her appeal. IAF, Tab 1 at 3.
¶5 The administrative judge issued an initial decision on March 18, 2014,
dismissing the appeal for lack of jurisdiction, without a hearing. IAF, Tab 5,
Initial Decision (ID). She found, in relevant part, that the appellant did not allege
that she had been removed pursuant to the terms of the LCA and did not
otherwise show that she was subjected to any of the actions enumerated
at 5 C.F.R. § 1201.3(a). 2 See ID.
¶6 The appellant has filed a petition for review, to which the agency responded
in opposition. Petition for Review (PFR) File, Tabs 1, 3. The Clerk of the Board
granted the appellant’s request for an extension of time to file a reply to the
agency’s response, but the appellant never filed a reply. PFR File, Tabs 4-5.
¶7 On review, the appellant states that she was “illegally placed on a last
chance agreement.” PFR File, Tab 1 at 3. She seems to allege that the LCA was
illegal because the agency’s proposal notice improperly relied upon absences for
which she had justification, including medical and other personal issues, and
provided proper documentation. 3 Id. However, she has not alleged that the
2
The administrative judge did not issue any jurisdictional notice. However, the
agency’s motion notified the appellant of her burden to establish jurisdiction, cited the
statute and regulation which identify the actions over which the Board has jurisdiction,
and alleged that the appellant did not suffer any adverse action as a result of the LCA.
IAF, Tab 4 at 5-6. In the initial decision, the administrative judge reiterated the
appellant’s burden to establish jurisdiction, again identified the regulation enumerating
actions over which the Board has jurisdiction, and noted that the appellant failed to
allege that she was removed in accordance with the LCA. See ID. We therefore find
that the agency’s motion to dismiss and the initial decision cured the lack of notice. See
Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009) (an administrative judge’s
failure to provide proper jurisdictional notice may be cured by the agency’s pleadings or
the initial decision).
3
The appellant states on review that she was “forced to resign” from her position. PFR
File, Tab 1 at 3. Her claim seems to be that the agency coerced her to resign by
proposing a removal action which, for the aforementioned reasons, it knew was
improper. Id. The appellant has already filed an involuntary resignation appeal before
the Board, raising substantially the same arguments as to the alleged involuntary nature
4
agency invoked the LCA to take any action against her. Because the appellant is
not bringing the LCA before the Board to determine its effect on an appeal of a
personnel action but, rather, apparently is seeking to preemptively challenge the
validity of the LCA, we lack jurisdiction to review that claim because the LCA
was not reached during the course of an appeal to the Board and made a part of
Board record. See Resnick v. Office of Personnel
Management, 120 M.S.P.R. 356, ¶ 12 (2013); see also Sullivan v. Department of
Veterans Affairs, 79 M.S.P.R. 81, 84 (1998) (while the Board does not have
authority to enforce a settlement agreement not entered into the record for
enforcement purposes, it has authority to consider the validity of such an
agreement so as to determine its effect on a personnel action before it); see also
Vasquez v. U.S. Postal Service, 65 M.S.P.R. 128, 131 (1994) (the appellant could
challenge two LCAs because the agency relied upon them in arguing that the
Board lacked jurisdiction over his removal). The appellant has also not identified
any other basis under 5 C.F.R. § 1201.3 for finding jurisdiction. We therefore
AFFIRM the initial decision.
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
of her resignation. MSPB Docket No. DC-0752-14-0290-I-1, Initial Appeal File
(IAF-0290), Tabs 1, 7. An administrative judge issued an initial decision dismissing
that appeal for lack of jurisdiction on February 26, 2014. IAF-0290, Tab 8, Initial
Decision (ID-0290). That decision became final on April 2, 2014, because the appellant
failed to file a petition for review. See ID-0290 at 7; see also 5 C.F.R. § 1201.113.
5
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.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.