Shu v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID SHU,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1440
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0353-15-0515-I-1.
______________________
Decided: May 12, 2017
______________________
DAVID SHU, Las Vegas, NV, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
______________________
Before PROST, Chief Judge, LOURIE, and STOLL, Cir-
cuit Judges.
2 SHU v. MSPB
PER CURIAM.
David Shu appeals a final decision of the Merit Sys-
tems Protection Board. Because the Board properly
dismissed Mr. Shu’s claims for lack of jurisdiction, we
affirm.
BACKGROUND
The facts related to this appeal involve several prior
or overlapping proceedings. Mr. Shu began working for
the United States Postal Service as a Part-Time Flexible
Letter Carrier in March 2002. In 2003, he suffered a
compensable injury, after which he was absent from work
and removed by the agency without leave for irregular
attendance/absence. Mr. Shu requested reinstatement in
March 2009 and ultimately returned to duty as a Full-
Time Letter Carrier in November 2010. After multiple
appeals and remands, the Administrative Judge (“AJ”) in
Mr. Shu’s case ordered, inter alia, that the Postal Service
provide Mr. Shu service credit for the entire period of
absence, from December 12, 2003 to November 6, 2010.
Shu v. U.S. Postal Serv., SF-0353-11-0065-B-2, slip op.
(M.S.P.B. Sept. 25, 2014) (“Shu B-2”). The AJ’s initial
decision became the final decision of the Board on October
30, 2014. Mr. Shu later filed a petition for enforcement
challenging the Postal Service’s compliance with the
decision in Shu B-2, which as of December 21, 2016, is
still pending before the Board.
On September 27, 2013, the Postal Service issued
Mr. Shu an Emergency Placement in Off-Duty Status
letter for failure to report a September 21, 2013 vehicle
accident involving an agency vehicle and a privately
owned vehicle. Shu v. U.S. Postal Serv., SF-0752-14-
0011-I-1, 2014 WL 5424298, at *2 (M.S.P.B. Oct. 23,
2014). Mr. Shu appealed to the Board, asserting, inter
alia, that his prior failure to restore claim was the real
reason for the emergency placement. The AJ dismissed
the appeal, finding that Mr. Shu had failed to nonfrivo-
SHU v. MSPB 3
lously allege jurisdiction over the appealed matter on any
basis. Specifically, as to Mr. Shu’s allegation that the
emergency placement was connected to his pending
restoration claim, the AJ found that the “record reflect[ed]
that the emergency placement was based on an unreport-
ed September 21, 2013 motor vehicle accident in a gov-
ernment vehicle, a matter substantially unrelated to a
compensable injury.” Id. at *3. The Board affirmed the
AJ’s dismissal of the appeal.
On November 4, 2013, Mr. Shu was issued a notice of
removal for Unacceptable Conduct/Failure to Report an
Accident occurring on September 21, 2013. In 2015, an
arbitrator found just cause for the removal. Mr. Shu then
appealed his removal to the Board. After receiving an
order setting forth the jurisdictional burdens, Mr. Shu
argued that the Board had jurisdiction under 5 C.F.R.
§ 353.304 because his appealed removal “was not substan-
tially unrelated to his injury and/or the agency had im-
properly rescinded its prior restoration.” Shu v. U.S.
Postal Serv., SF-0353-15-0515-I-1, slip op. (M.S.P.B. June
21, 2016). The AJ issued an order to show cause, explain-
ing that the Board did not appear to have jurisdiction
over his removal on any basis and ordered Mr. Shu to file
evidence and/or argument on the issue of jurisdiction.
After receiving Mr. Shu’s response, the AJ issued an
initial decision dismissing Mr. Shu’s appeal for lack of
jurisdiction. The AJ found that Mr. Shu failed to nonfriv-
olously allege Board jurisdiction over his removal as an
adverse action under Chapter 75 of Title 5. The AJ
additionally found that the Board did not have jurisdic-
tion over Mr. Shu’s restoration claim because there was
no evidence in the record to indicate that he suffered a
compensable injury following his return to work on No-
vember 6, 2010, and the record reflected that his removal
was based on the unreported September 21, 2013 motor
vehicle accident, a matter substantially unrelated to a
compensable injury. Mr. Shu petitioned the Board for
4 SHU v. MSPB
review, but in December 2016 the Board denied the
petition and affirmed the initial decision. Shu v. U.S.
Postal Serv., SF-0353-15-0515-I-1, 2016 WL 7335242, at
*1 (M.S.P.B. Dec. 2, 2016).
Mr. Shu appealed the Board’s December 2016 deci-
sion to this court, and we have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review decisions of the Board on a limited basis,
setting aside Board actions, findings, or conclusions only
if we find them to be “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). Whether the
Board had jurisdiction over Mr. Shu’s claims is a question
of law that this court reviews de novo. Whiteman v. Dep’t
of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). Mr. Shu
bears the burden of establishing the Board’s jurisdiction
by a preponderance of the evidence. Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).
The Board’s jurisdiction is limited to those matters
over which it has been specifically granted jurisdiction by
a law, rule, or regulation. 5 U.S.C. § 7701(a); Prewitt v.
Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998).
We find that the Board properly dismissed Mr. Shu’s
appeal for lack of jurisdiction.
I.
“As a general matter, the Board does not have juris-
diction over adverse actions taken against employees of
the postal service.” Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998); see also 5 U.S.C.
§ 7511(b)(8). In certain circumstances, however, Congress
has extended Title 5 to cover Postal Service employees.
SHU v. MSPB 5
Subchapter II of Chapter 75 of Title 5, and thus the
Board’s jurisdiction, extends:
(i) to any preference eligible in the Postal Service
who is an employee within the meaning of section
7511(a)(1)(B) of such title; and
(ii) to any other individual who—
(I) is in the position of a supervisor or a
management employee in the Postal Ser-
vice, or is an employee of the Postal Ser-
vice engaged in personnel work in other
than a purely nonconfidential clerical ca-
pacity; and
(II) has completed 1 year of current con-
tinuous service in the same or similar po-
sitions.
39 U.S.C. § 1005(a)(4)(A).
Mr. Shu does not allege, and there is nothing in the
record to suggest, that he is a preference eligible, a man-
agement or supervisory employee, or an employee en-
gaged in personnel work in other than a purely
nonconfidential clerical capacity. Thus, the Board proper-
ly found that Mr. Shu did not have the right to challenge
his removal before the Board as an adverse action appeal
under Chapter 75 of Title 5.
II.
Mr. Shu contends, however, that the 2013 removal
action was an attempt to deprive him of his restoration
rights stemming from his 2003 compensable injury.
However, “separation for cause that is substantially
unrelated to the injury . . . negates restoration rights.”
5 C.F.R. § 353.108. Thus, “[a]n employee who has been
removed for cause rather than a compensable injury is not
entitled to restoration and cannot appeal to the
6 SHU v. MSPB
Board.” Minor v. Merit Sys. Prot. Bd., 819 F.2d 280, 282
(Fed. Cir. 1987).
As the Board correctly found, there is no evidence
demonstrating that Mr. Shu suffered a compensable
injury following his return to work in 2010 or that his
2013 removal was not substantially unrelated to his 2003
compensable injury. Rather, the evidence demonstrates
that his removal was based on an unreported motor
vehicle accident in September 2013, a matter substantial-
ly unrelated to any compensable injury. Thus, Mr. Shu
has not met his burden of establishing the Board’s juris-
diction over this appeal based on restoration rights.
Finally, Mr. Shu argues that the Postal Service has
failed to comply with the Board’s decision in Shu B-2. As
explained above, however, Mr. Shu filed a petition for
enforcement challenging the Postal Service’s compliance
with the Shu B-2 decision, which as of December 21, 2016,
is still pending before the Board. As this issue is pending
in a separate appeal before the Board, it is not properly
before us in this appeal. Accordingly, we find that the
Board properly dismissed Mr. Shu’s appeal in this case for
lack of jurisdiction.
CONCLUSION
We have carefully considered Mr. Shu’s remaining ar-
guments and determined that they lack merit. For the
reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.