Ronnie A. Bell, Sr. v. United States Postal Service ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONNIE A. BELL, SR., DOCKET NUMBER
Appellant, DC-0752-14-0633-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: January 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Heather H. Bell, Youngsville, North Carolina, for the appellant.
Tanisha J. Locke, Charlotte, North Carolina, 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 the appeal of his suspension 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
BACKGROUND
¶2 The appellant alleged that the agency suspended him for 6 weeks and filed
an appeal of the suspension before the Board, indicating that he was eligible for
veteran’s preference under 5 U.S.C. § 2108. Initial Appeal File (IAF), Tab 1 at
2-3. The agency filed a motion to dismiss the appeal for lack of jurisdiction,
arguing that the appellant lacks appeal rights before the Board because his Form
DD-214, which indicated no service-related disability or military service meeting
any of the criteria for a “veteran” under section 5 U.S.C. § 2108(1), conflicted
with the information in his Form PS-50 showing a veteran’s preference. IAF, Tab
5 at 6-7, 11, 15. The administrative judge issued an order requiring the appellant
to submit evidence and argument to prove that he was entitled to a veteran’s
preference. IAF, Tab 6 at 2. The appellant responded that he had received a five-
point veteran’s preference to gain employment with U.S. Postal Service and was
given veteran’s preference in securing a home loan, but offered no explanation
regarding his Form DD-214 and provided no evidence demonstrating that he was
preference eligible. IAF, Tab 7 at 1. In an initial decision issued without holding
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a hearing, the administrative judge dismissed the appeal for lack of jurisdiction
based on the parties’ written submissions because she found that the appellant had
failed to raise a nonfrivolous allegation entitling him to a hearing. IAF, Tab 8,
Initial Decision (ID) at 3-4. The administrative judge found that, despite the
appellant’s assertion that he was entitled to a five-point hiring preference based
on his military service, his Form DD-214 showed no service-connected disability
and service dates from September 21, 1979, to June 19, 1983, a period which did
not entitle him to preference-eligible status. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 On review, the appellant submitted an additional Form DD-214, showing
military service from June 20, 1983, to March 10, 1986, with general discharge
under honorable conditions for “misconduct—drug abuse (use).” Petition for
Review (PFR) File, Tab 1 at 4. The petition for review makes no statement
concerning the appellant’s failure to provide this evidence to the administrative
judge, but argues that the 6 years of military service shown qualifies him for
veteran’s preference. Id. at 5. The agency submitted a response, arguing that the
appellant had not submitted new and material evidence that was not available
when the record closed. PFR File, Tab 3 at 5-6. Moreover, the agency argued
that the additional military service shown in the supplemental Form DD-214 did
not fall within the dates set out in 5 U.S.C. § 2108(1) or qualify under the other
criteria to be a preference eligible. Id. at 7-8.
¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In order to have
appeal rights before the Board, a Postal Service employee: (1) must be an
excepted-service, preference-eligible employee, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity; and (2) must have completed 1 year of current
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continuous service in the same or similar positions. See 5 U.S.C.
§ 7511(a)(1)(B); 39 U.S.C. § 1005(a)(4)(A); Trabue v. U.S. Postal Service, 102
M.S.P.R. 14, ¶ 5 (2006). A preference-eligible veteran includes an individual
who served on active duty in the armed forces during specific periods of time,
and who has been discharged or released from active duty in the armed forces
under honorable conditions. 5 U.S.C. § 2108(1)(C), (3)(A)-(B). A disabled
veteran is also preference eligible. 5 U.S.C. § 2108(3)(C). A disabled veteran
means an individual who served on active duty in the armed forces, was separated
under honorable conditions, and has an established service-connected disability.
5 U.S.C. § 2108(2).
¶5 The appellant bears the burden of proof of establishing Board jurisdiction
by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is
entitled to a hearing if he raises a nonfrivolous allegation of Board jurisdiction
over his appeal. See Edwards v. Department of the Air Force, 120 M.S.P.R. 307,
¶ 6 (2013). In determining whether the appellant has made a nonfrivolous
allegation of jurisdiction entitling him to a hearing, the administrative judge may
consider the agency’s documentary submissions; however, to the extent that the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the administrative judge
may not weigh evidence and resolve conflicting assertions of the parties and the
agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994). Based on the record before her, the administrative
judge correctly found that the appellant failed to make a nonfrivolous allegation
that he is preference eligible as defined in 5 U.S.C. § 2108, because the Form
DD-214 submitted by the agency showed military service from September 21,
1979, to June 19, 1983, dates which fall outside of the specific periods stated in
section 2108(1). Although the appellant made no argument that the supplemental
Form DD-214 he submitted on review was unavailable to him prior to the close of
the record, we note that this evidence is immaterial because the dates of military
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service evidenced in this document do not correspond with any of the time
periods established in section 2108(1). Thus, we find that the appellant has failed
to make a nonfrivolous allegation that he is a preference-eligible veteran by
nature of his dates of service or disability rating under 5 U.S.C. § 2108, and
therefore has not adequately alleged any appeal rights before the Board.
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
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
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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.