Freeman v. Merit Systems Protection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3323
STEPHEN D. FREEMAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: May 12, 2006
__________________________
Before MICHEL, Chief Judge, NEWMAN and RADER, Circuit Judges.
NEWMAN, Circuit Judge.
Stephen D. Freeman petitions for review of the decision of the Merit Systems
Protection Board, Docket No. SF0752040604-I-1, dismissing his appeal for lack of
jurisdiction. We affirm the decision of the Board.
BACKGROUND
Mr. Freeman was removed from his position of Criminal Investigator in the Los
Angeles office of the Office of the Inspector General of the U.S. Postal Service for leaving a
threatening message on his supervisor's voicemail. He disagreed with the agency's
assessment that the message represented a threat and argued that even if it did, mitigating
circumstances such as his depression and recent divorce mandated a less severe action
than removal.
When Mr. Freeman attempted to appeal to the Board, the government moved for
dismissal for lack of jurisdiction. The government argued that, as a non-preference eligible
employee of the Postal Service, Mr. Freeman could appeal to the Board only if he were a
supervisory or management employee, and he was not. Mr. Freeman argued that his
duties as a criminal investigator were supervisory in nature, and that the Board therefore
had jurisdiction over his removal. The Board granted the government's motion to dismiss,
leading to this appeal.
DISCUSSION
The parties agree that Mr. Freeman is not a preference eligible employee. The
Board's jurisdiction over Postal Service employees who are not preference eligible is limited
to supervisory or management employees or those engaged in personnel work. 39 U.S.C.
§1005(a)(4)(A); Waldau v. M.S.P.B., 19 F.3d 1395 (Fed. Cir. 1994). Mr. Freeman argues
that his duties make him a supervisory or management employee; he does not allege that
he was engaged in personnel work.
The Board defined a management employee as "one who represents management's
interests by taking or recommending discretionary actions that control or implement policies
05-3323 2
of the employer," citing Strope v. U.S. Postal Service, 71 M.S.P.R. 429, 436 (1996). Mr.
Freeman argues that his duties are within this definition, since "the purpose of the Office of
the Inspector General is to enforce and influence the policies of management." Petitioner's
Informal Brief at 4. While that may be correct, the overall mission of an organization does
not confer management status on every employee in that organization. Mr. Freeman, as a
criminal investigator, identified no activity or authority within the scope of management as
defined by the National Labor Relations Act. See National Labor Relations Board v.
Yeshiva University, 444 U.S. 672, 683 (1980).
Mr. Freeman argues that he exercises discretion in his investigations and represents
management interests when investigating crimes and wrongdoing within the postal system.
He also argues that he is entitled to appeal to the Board because he is in fact a supervisor,
although he did not raise that argument before the Board. Reviewing Mr. Freeman's
description of his duties as a criminal investigator, he does not assert that he supervises
other criminal investigators or anyone else in the OIG. Instead, he states that the results of
his investigations frequently result in disciplinary action against other employees of the
Postal Service and thus should be deemed supervisory action. However, Mr. Freeman
concedes, in straightforward terms, that "Petitioner and similarly situated investigators have
no independent authority to impose discipline or even suggest the level of discipline
appropriate for the circumstances," Petitioner's Informal Brief at 3. As noted in National
Labor Relations Board v. Bell Aerospace, 416 U.S. 267, 268 n.19 (1974), the employee's
actual job responsibilities control whether he is "managerial." See Bolton v. Merit Systems
Protection Board, 154 F.3d 1313, 1318 (Fed. Cir. 1998).
05-3323 3
No error has been shown in the ruling that Mr. Freeman's role in gathering data and
information upon which supervisory decisions will be made by others does not make him a
supervisor. The Board correctly held that his position as a criminal investigator does not
qualify as a management or supervisory employee of the Postal Service.
Since none of the conditions for Board jurisdiction have been met, the Board
correctly dismissed his appeal for lack of jurisdiction.
05-3323 4