Shawn K. Carter v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN K. CARTER, DOCKET NUMBER
Appellant, AT-0752-13-3701-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 9, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Shawn K. Carter, Maryville, Tennessee, pro se.
Keyur S. Shah, Philadelphia, Pennsylvania, 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 this appeal for lack of jurisdiction over the appellant’s claim
concerning an alleged suspension. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 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 After affording the parties the opportunity to address whether the Board has
jurisdiction over the subject matter of this appeal, Initial Appeal File (IAF), Tab
11, the administrative judge found that the appellant failed to establish that he
had been subjected to an appealable suspension, IAF, Tab 15, Initial Decision
(ID). As explained in the initial decision, only certain adverse actions are
appealable to the Board under 5 U.S.C. chapter 75. ID at 2-3. Although a
suspension of more than 14 days falls within that authority, 5 U.S.C. § 7512(2),
the administrative judge found nothing in the record to indicate that the appellant
had been suspended at all, much less for more than 14 days, ID at 3. Rather, the
uncontroverted evidence showed that the appellant was in an off-duty but paid
status during the relevant period. ID at 2. Because the appellant was in a paid
status, he was not subjected to a “suspension” that can be appealed to the Board
as an adverse action under 5 U.S.C. chapter 75. See 5 U.S.C. §§ 7501(2),
7511(a)(2), 7512(2), 7513(d); Henry v. Department of the Navy, 902 F.2d 949,
954 (Fed. Cir. 1990).
3
¶3 The appellant’s petition for review does not contain any recognizable
challenge to the administrative judge’s analysis. Rather, the petition for review
appears to challenge the initial decision in the appellant’s separate appeal
regarding his removal, which has been docketed as Carter v. U.S. Postal Service,
MSPB Docket No. AT-0752-13-3703-I-1. The Board has addressed those
arguments in a separate decision in the removal appeal.
¶4 We discern no reason to disturb the initial decision dismissing this matter
for lack of jurisdiction without a hearing. The appellant has failed to raise any
nonfrivolous issue of fact relating to the determination that he was not subjected
to an action that is reviewable by the Board. See Manning v. Merit Systems
Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).
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.
4
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.