Bridgette Cobb v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIDGETTE COBB, DOCKET NUMBER
Appellant, DC-0353-14-1117-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 1, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Brian T. Edmunds, Esquire, Washington, D.C., for the appellant.
Jed Charner, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal 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 on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 The nonpreference-eligible appellant worked for the U.S. Postal Service
(agency) in a series of transitional, not-to-exceed (NTE) appointments as a City
Carrier between May 2005, and April 10, 2013. Initial Appeal File (IAF), Tab 9
at 19-59. Effective April 10, 2013, the agency terminated the appellant on the
expiration date of her transitional, noncareer, NTE appointment as a City Carrier.
Id. at 59, 61, 66. At the time of her termination, the appellant was receiving
monthly payments from the Office of Workers’ Compensation Programs for an
on-the-job injury that occurred on April 21, 2012. IAF, Tab 1, Tab 8 at 10. In
January 2014, the appellant recovered sufficiently to resume working with certain
restrictions and she sought work. IAF, Tab 1 at 5, Tab 8 at 5, 17-21. The agency
instructed the appellant to apply for a position, and she unsuccessfully applied for
a City Carrier Assistant (CCA) position in June 2014. IAF, Tab 8 at 32-33. The
appellant subsequently filed an appeal with the Board alleging that the agency
denied her restoration rights. IAF, Tab 1 at 4.
¶3 The administrative judge set forth the jurisdictional criteria applicable to a
restoration appeal and ordered the appellant to file evidence and argument
proving that the Board had jurisdiction over her appeal or that she was entitled to
a hearing on the jurisdictional issue. IAF, Tab 3. After considering the parties’
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responses to the order on jurisdiction, the administrative judge dismissed the
appellant’s restoration appeal, without holding a hearing, and found that the
appellant failed to make a nonfrivolous allegation of jurisdiction. IAF, Tabs 8-9,
13, Tab 14, Initial Decision (ID) at 1-2, 5-6. In reaching her decision, the
administrative judge found that the appellant offered no evidence or argument to
contradict the agency’s documentary evidence that her appointments were made
in accordance with 5 U.S.C. § 1001 and the collective bargaining agreement with
a not-to-exceed date. ID at 5-6. Based on the foregoing, the administrative judge
found that the Board had no jurisdiction over the appellant’s restoration claim
because she was not within the regulatory definition of covered persons. ID at 5.
¶4 The appellant filed a petition for review arguing that she was entitled to a
hearing because she made a nonfrivolous allegation of jurisdiction based on her
assertion that the agency treated her as a permanent employee and that, but for
her compensable injury, the agency would have restored her to a permanent
position. Petition for Review (PFR) File, Tab 3 at 13-15. The appellant also
argues that time-limited temporary employees possess restoration rights under
5 U.S.C. § 353.103(b), and that she meets the other jurisdictional criteria to bring
a restoration appeal. Id. at 15-17. The agency responded in opposition to the
petition, and the appellant replied. PFR File, Tabs 5-6.
¶5 An employee who is “separated or furloughed from an appointment without
time limitation, or from a temporary appointment pending establishment of a
register (TAPER) as a result of a compensable injury” may have restoration rights
under 5 C.F.R. Part 353. Law v. Department of the Navy, 77 M.S.P.R. 474, 476
(1998); 5 C.F.R. § 353.103(b). In this case, it is undisputed that the agency
separated the appellant from an appointment with a time limitation, although she
alleges that her compensable injury was the reason for her termination rather than
the expiration of her appointment. PFR File, Tab 3 at 10. Moreover, the
appellant does not allege that her appointment to that position was a TAPER.
4
¶6 The appellant’s allegations that the administrative judge misconstrued the
law and that the other transitional employees at her duty station were “converted
to career or CCA status and that she would have been but for her compensable
injury,” do not bring this appeal within the Board’s jurisdiction. 2 PFR File, Tab 6
at 4-5. Accordingly, the administrative judge properly found that the Board does
not have jurisdiction over the appellant’s restoration claim. See Law,
77 M.S.P.R. at 476; see also Sullivan v. Department of Transportation,
59 M.S.P.R. 18, 19 (1993) (finding that the appellant’s failure to support his
assertion that he served in other than a temporary appointment with a 1-year time
limit precluded him from showing that the Board has jurisdiction over his claim
regarding restoration rights); Dubose v. U.S. Postal Service, 45 M.S.P.R. 252,
256-57 (1990) (finding that the administrative judge properly dismissed the
appeal for lack of jurisdiction because the appellant was not included in the
categories of employees entitled to appeal to the Board from a denial of
restoration under 5 C.F.R. Part 353); Hays v. Department of the Air Force,
84 M.S.P.R. 443, ¶ 15 (1999) (finding that restoration under Part 353 is available
to an employee who was separated from a position without time limitation, so
long as the separation either resulted from, or was substantially related to, a
compensable injury); 5 C.F.R. § 1201.3(a)(12).
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We find no merit in the appellant’s argument that her situation is analo gous to the
probationer in Roche v. U.S. Postal Service, 828 F.2d 1555, 1558 (Fed. Cir. 1987), who
obtained a jurisdictional hearing in his restoration appeal by making a nonfrivolous
allegation that he was terminated during his probationary period due to his compensable
injury. PFR File, Tab 3 at 11-12. Unlike the appellant, the agency terminated Roche
while he was serving a probationary career appointment as a part-time flexible letter
carrier, which appears as a position without time lim itation within the co verage of the
regu lation then in effect in 1987. Roche, 828 F.2d at 1556; 5 C.F.R. 353.103(c)(1)
(1987). Regard less, in Roche, the Federal Circuit d id not address the issue of whether
the appellant fell within the definition of “persons covered” in 5 C.F.R. 353.103(c)(1)
(1987), and the current regulation is substantially different. Compare 5 C.F.R.
§ 353.103(b) (2014), and 5 C.F.R. § 353.103(c)(1) (1987).
5
¶7 We have considered the appellant’s remaining arguments and we find no
reason to disturb the initial decision dismissing the appeal for lack of jurisdiction
without holding a hearing. 3
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.
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
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The appellant’s allegations that the agency treated her as a permanent employee and
that the agency “failed to restore her to a permanent (not temporary position),” do not
show that she meets the regulatory definition of covered persons. PFR File, Tab 3
at 10-11; see 5 C.F.R. § 353.103(b).
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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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.