Leslie J. Fejfar v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LESLIE J. FEJFAR, DOCKET NUMBER
Appellant, SF-0752-14-0034-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 18, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Guillermo Mojarro and Jacob Mojarro, Upland, California, for the
appellant.
Bobbi Mihal, Dallas, Texas, 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 without prejudice the appeal of his alleged constructive 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as modified by the
extension of the time period during which the appellant must refile his appeal, we
AFFIRM the initial decision.
¶2 On December 31, 2013, the administrative judge issued an initial decision
dismissing the appellant’s appeal, without prejudice, pending the Board’s
issuance of a decision in the appellant’s alleged constructive suspension appeal,
Fejfar v. U.S. Postal Service, MSPB Docket No. SF-0752-13-0149-I-1. Initial
Appeal File, Tab 24, Initial Decision (ID). The administrative judge ordered the
appellant to refile his appeal within 30 days of the date the Board issued its
decision in his constructive suspension appeal. 2 ID at 4.
¶3 The appellant has filed a petition for review in which he primarily argues
the merits of his appeal. Petition for Review (PFR) File, Tab 2 at 5-10. He also
requests that the Board allow him at least 45 days after all of his outstanding
cases, including his cases before the Equal Employment Opportunity
2
The administrative judge noted that the appeal would be automatically refiled on
January 2, 2015, if the Board had not issued a decision by that date. ID at 4.
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Commission, have been closed to refile the present appeal. Id. at 8. The agency
has filed an opposition to the appellant’s petition for review. 3 PFR File, Tab 4.
¶4 At the outset, we note that the appellant’s arguments regarding the merits of
his appeal are not at issue before the full Board because the administrative judge
has not yet made a ruling on the merits. Should the administrative judge issue a
decision on the merits and the appellant petition for review of that decision, the
Board will address the merits of his appeal at that time.
¶5 Regarding the appellant’s instant request, we find that 45 days is not an
unreasonable amount of time to provide for the refiling of the present appeal.
However, with the exception of the appellant’s constructive suspension appeal,
the outcomes of his other outstanding cases are not necessary for the
administrative judge to make a decision on his constructive removal appeal.
Accordingly, the parties are advised that the appellant is ORDERED to refile his
appeal within 45 days of the date the Board issues its Final Order in his
constructive suspension appeal, Fejfar v. U.S. Postal Service, MSPB Docket
No. SF-0752-13-0149-I-1. 4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitute the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the United States Court of Appeals for the
3
The agency argues on review that the appellant’s petition for review should be
dismissed as untimely filed. PFR File, Tab 4 at 4-6. In an acknowledgment letter,
however, the Clerk of the Board stated that the Board was considering the appellant’s
petition for review as timely filed under the circumstances. PFR File, Tab 3 at 1. We
are not persuaded by the agency’s argument to find otherwise.
4
The appellant has attached alleged new evidence to his petition for review. PFR File,
Tab 2 at 12-39. These documents will be incorporated by reference into the record of
the refiled appeal.
4
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.
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
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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.