Derek T. Williams v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEREK T. WILLIAMS, DOCKET NUMBER
Appellant, DA-0752-15-0530-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Derek T. Williams, Monroe, Louisiana, pro se.
Charles E. Booth, Dallas, Texas, 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 his termination appeal for lack of jurisdiction based on the written
record. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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of the law to the facts of the case; the administrative 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, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. 2 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 Board’s jurisdiction 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). The appellant bears the burden of
proving by preponderant evidence that his appeal is within the Board’s
jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). If the appellant makes nonfrivolous
allegations of fact that, if proven, would establish the Board’s jurisdiction, he is
entitled to a hearing at which he must prove jurisdiction by preponderant
evidence. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006).
¶3 An employee of the Postal Service may appeal a removal action under
chapter 75 only if he is covered by 39 U.S.C. § 1005(a) or 5 U.S.C.
§ 7511(a)(1)(B). 5 U.S.C. § 7511(b)(8). Thus, to appeal a removal action under
2
The appellant has filed a motion requesting that the Board permit him to submit an
additional pleading pursuant to 5 C.F.R. § 1201.114(a)(5). In his motion, the appellant
seeks to submit evidence showing that a criminal charge against him for failure to yield
leaving a private drive was dismissed. In light of the Board’s dismissal of this matter
for lack of jurisdiction, we find this evidence to be immaterial to the outcome of this
appeal. Accordingly, the appellant’s motion for leave to file an additional pleading is
DENIED.
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chapter 75, a Postal employee (1) must be a preference eligible, 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 continuous service in the same or similar positions. Toomey v. U.S.
Postal Service, 71 M.S.P.R. 10, 12 (1996). The term “current continuous service”
means service, either in the competitive or excepted service, that immediately
precedes an adverse action without a break in Federal civilian employment of a
workday. Fitzgerald v. Department of the Air Force, 108 M.S.P.R. 620,
¶ 10 (2008).
¶4 Here, the first requirement is satisfied, because the appellant is a preference
eligible. However, it is undisputed that the appellant had been employed as a
City Carrier Assistant for less than 1 year at the time of his termination, and he
concedes that he had a break in service of at least 5 workdays before being
appointed to that position. Hence, the appellant lacks 1 year of current
continuous service in the same or similar positions. Furthermore, in the absence
of an otherwise appealable action, the Board lacks jurisdiction to consider the
appellant’s claims that the agency violated the collective bargaining agreement.
See Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that in
the absence of an otherwise appealable action, the Board lacked jurisdiction over
claims of harmful error, prohibited personnel practices, and the agency’s alleged
failure to comply with regulations). We conclude that, because the appellant
failed to make a nonfrivolous allegation of jurisdiction, the administrative judge
properly dismissed his appeal without a hearing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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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.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
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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.