Opinion

Israel Garza v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

finding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

How later courts described this case

finding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ISRAEL GARZA, DOCKET NUMBER

Appellant, SF-3443-19-0114-I-1

UNITED STATES POSTAL SERVICE, DATE: July 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Israel Garza , American Canyon, California, pro se.

Deborah C. Winslow-Portillo , Esquire, San Francisco, California, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such

as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

interpretation of statute or regulation or the erroneous application 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. 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. 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

The appellant is employed with the agency as a Building Equipment

Mechanic. Initial Appeal File (IAF), Tab 7 at 31. In this appeal, he asserted that

agency management and medical staff had conspired to “lock [him] out” during

his employment at the agency’s San Francisco Processing and Distribution Center

(P&DC) in 2005 and forced him to use up his sick leave. IAF, Tab 1 at 3.

Nevertheless, he subsequently went back to work and transferred to the

Sacramento P&DC. Id. The appellant also claimed that he is a 10-point veteran,

and that the accounting for his “military time” had disappeared from his benefits

statement. Id. at 3-4. It appears that, in November 2016, the agency adjusted his

retirement computation date from November 12, 1983, to April 30, 1984, due to a

prior error in crediting his service under the Civil Service Retirement System.

IAF, Tab 7 at 32. He did not request a hearing.

The administrative judge issued an acknowledgment order giving the

appellant notice of his burden to establish Board jurisdiction over his appeal.

IAF, Tab 2. In his response, he reiterated that he is a 10 -point disabled veteran,

and asserted that he is Mexican-American. IAF, Tab 4. He did not claim that the

agency discriminated against him on the basis of his military service or his

nationality. Id.

Based on the written record, the administrative judge dismissed the appeal

for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). Acknowledging the

appellant’s claim that he is a 10-point disabled veteran, the administrative judge

observed that he provided no documentation that would support a finding that he

is preference eligible. ID at 3. Nevertheless, he found that, even if the appellant

established that he is entitled to veteran’s preference, the matters that he sought

to appeal are not within the Board’s jurisdiction, and without an otherwise

appealable action, the Board also lacks jurisdiction over the appellant’s

discrimination claim. ID at 3-4.

In his petition for review, the appellant essentially reiterates the allegations

he made below, including the assertion that he has a 10% disability rating from

the Department of Defense, but he does not offer any documentation in support of

his claim. Petition for Review (PFR) File, Tab 1. He explains that his reference

to “military time” concerned “military buyback time,” which he remembers

paying in 1985 or 1986, but he now asserts that his reference to it was a mistake.

Id. at 2. The agency has filed a response to the appellant’s petition for review,

and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The record does not show that the agency took an appealable adverse action

against the appellant. Although the appellant alleged he was “locked out” of his

prior duty station, requiring him to use sick leave, he provides no details such as

the length or circumstances of his absence. IAF, Tab 1 at 3. Further, he appears

to have transferred to another facility. Id. In any event, the Board lacks

jurisdiction over any alleged adverse action because the appellant failed to prove

that he is an employee with adverse action appeal rights.

A U.S. Postal Service employee has a right to appeal an adverse action to

the Board if he (1) is 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) has completed 1 year of current

continuous service in the same or similar positions. 39 U.S.C. § 1005(a)(4)(A);

5 U.S.C. § 7511(a)(1)(B)(ii); Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404,

¶ 17 (2016). 2 The administrative judge found that the appellant was not

preference eligible because, notwithstanding his assertion of a 10-point disability

rating, he provided no documentation supporting his claim. 3 ID at 3. We agree.

A preference eligible is, as relevant here, either an individual who served

on active duty during certain designated periods, other than active duty for

training, or who is a disabled veteran. 5 U.S.C. § 2108(3)(A)-(C); 38 U.S.C.

§ 101(21)(A). The record indicates that the U.S. Air Force Reserve certified that,

following the appellant’s service from April 15 to October 4, 1985, he received

an “Honorable Release from Active Duty for Training,” and that he had “[n]o

The administrative judge did not provide proper jurisdictional notice as to what the

appellant must do to establish that he is an employee entitled to appeal an adverse

action to the Board. IAF, Tab 2; see Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive explicit

information on what is required to establish an appealable jurisdictional issue).

Nonetheless, the lack of Burgess notice did not prejudice the appellant’s substantive

rights because the agency’s response and the initial decision notified him which Postal

Service employees have the right to appeal an adverse action to the Board. IAF, Tab 7

at 10-11; see Hamilton, 123 M.S.P.R. 404, ¶ 17 n.10 (finding that a lack of Burgess

notice did not prejudice an appellant’s substantive rights because her pleadings

demonstrated that she was aware of the jurisdictional prerequisites for establishing that

she was a postal employee with appeal rights, and the initial decision also provided this

information); see also Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008)

(finding that an administrative judge’s failure to provide an appellant with proper

Burgess notice can be cured if the agency’s pleadings or the initial decision provides

information on what is required to establish an appealable jurisdictional issue, thus

affording the appellant an opportunity to meet his jurisdictional burden on petition for

review).

The appellant did not claim below or on review that he was a management or

supervisory employee, or an employee engaged in personnel work in any capacity

whatsoever. Nor does the record suggest that the agency employed him in any such

positions. Thus, we need not analyze these factors.

active service for other than training purposes” as of the date of the certificate,

September 16, 2016. IAF, Tab 7 at 33, 37. The agency explained that it

corrected the appellant’s retirement computation date because its Employee and

Labor Relations Manual provides that only “honorable active service” in the

Armed Forces of the United States may be creditable for retirement purposes. Id.

at 8, 43.

To make a nonfrivolous allegation that he is preference eligible, especially

when, as here, the record indicates a lack of such status, the appellant must make

more than a bare assertion without supporting evidence. See Bergon v. U.S.

Postal Service, 64 M.S.P.R. 228, 231 n.5 (1994) (finding that an appellant must

provide documentation of his preference eligibility to raise a nonfrivolous

allegation entitling him to further proceedings on the matter), aff’d sub nom.

Rafferty v. U.S. Postal Service, 74 F.3d 1260 (Fed. Cir. 1996) (Table) (per

curiam). The appellant asserted he was preference eligible based on a

service-connected disability. IAF, Tab 1 at 3. In the initial decision, the

administrative judge advised the appellant that he should substantiate his claim

with documentation from the Department of Veterans Affairs. ID at 4. On

review, the appellant has not done so. Because the appellant failed to provide any

documentation in support of his claim that he is preference eligible, we find that

he failed to make a nonfrivolous allegation of such. Thus, we agree with the

administrative judge that he failed to establish jurisdiction over any alleged

adverse action.

The appellant asserted information implying claims of prohibited personnel

practices, i.e., discrimination and reprisal for alleged protected disclosures and

activities. IAF, Tab 1 at 3-4, Tab 4 at 1, Tab 9 at 1-2. However, absent an

otherwise appealable action, the Board lacks jurisdiction over the appellant’s

discrimination claims. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2

(1980) (finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are

not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73

(D.C. Cir. 1982). Further, the Board does not have independent jurisdiction over

the appellant’s retaliation claims because, as a Postal Service employee, he is not

entitled to corrective action under 5 U.S.C. § 1221. See Hess v. U.S. Postal

Service, 123 M.S.P.R. 183, ¶ 9 (2016) (finding that an administrative judge

properly dismissed an appellant’s affirmative defense of whistleblower reprisal as

moot after the agency rescinded her removal because, as a Postal Service

employee, the appellant was not entitled to corrective action).

As noted above, the appellant asserts in his petition for review that the

reference to his “military buyback time” was mistaken. PFR File, Tab 1 at 2.

Among other things, the administrative judge gave the appellant general notice in

the acknowledgment order that he may have a claim under the Uniformed

Services Employment and Reemployment Rights Act of 1994 (USERRA)

(codified as amended at 38 U.S.C. §§ 4301-4335). IAF, Tab 2 at 2-3. He also

gave the appellant more detailed notice about filing a discrimination claim under

USERRA in the initial decision. ID at 4. Nevertheless, the appellant did not

indicate that he sought to pursue such a claim in his appeal below or on review.

However, two types of claims arise under USERRA: (1) reemployment

cases, in which the appellant claims that an agency has not met its obligations

under 38 U.S.C. §§ 4312-4318 following the appellant’s absence from civilian

employment to perform uniformed service; and (2) so-called “discrimination”

cases, in which the appellant claims that an agency has taken an action prohibited

by 38 U.S.C. § 4311(a) or (b). Clavin v. U.S. Postal Service, 99 M.S.P.R. 619,

¶ 5 (2005). As noted above, the appellant received notice of how to establish

jurisdiction over the second type of claim, i.e., that the agency denied the

appellant a benefit of employment due to his military service. ID at 4. The

administrative judge did not give the appellant notice of what he must allege to

establish jurisdiction over a USERRA reemployment claim. An employee whose

absence from his civilian position is necessitated by military service is entitled to

reemployment rights and benefits under USERRA if: (1) the employee or the

military provided the employer with advance notice; (2) the cumulative absence

does not exceed 5 years; and (3) the employee requests reemployment in the

prescribed manner and timeframe. 38 U.S.C. § 4312(a); Woodman v. Office of

Personnel Management, 258 F.3d 1372, 1376 (Fed. Cir. 2001). If the uniformed

service exceeded 90 days, the returning employee is entitled to reemployment to

the position in which he would have been employed if his continuous employment

had not been interrupted by such service, or a position of like seniority, status,

and pay, the duties of which he is qualified to perform. Rassenfoss v. Department

of Treasury, 121 M.S.P.R. 512, ¶ 14 (2014). The employee is also entitled to the

same rights and benefits generally provided to employees having similar

seniority, status, and pay who are on furlough or leave of absence. Id., ¶ 15.

Those right and benefits may include the right to make a payment, and

receive service credit, for periods of military service during which the

agency designated the employee as in a leave without pay status. See

Whittacre v. Office of Personnel Management, 120 M.S.P.R. 114, ¶¶ 10-11 (2013)

(so finding in the context of the Federal Employees’ Retirement System).

The appellant alleged below, and restates on review, that the agency forced

him in 2005 to use all of the sick leave he had accumulated since 1983. IAF,

Tab 1 at 3; PFR File, Tab 1 at 1. However, has not claimed that the use of this

sick leave was an improper denial of reemployment rights arising from his

1983-1984 military service. IAF, Tab 1 at 3; PFR File, Tab 1 at 1. In addition,

he no longer asserts that he was improperly denied retirement credit for his

military service or the right to “buy back” military time. PFR File, Tab 1 at 2.

Thus, we conclude, at this point, that he is not alleging a denial of his USERRA

reemployment rights. Nonetheless, we observe that there is no time limit for the

filing of a direct appeal under USERRA. Gossage v. Department of Labor,

118 M.S.P.R. 455, ¶ 9 n.4 (2012). If the appellant wishes to raise a USERRA

reemployment claim, he may, as the administrative judge observed, file a new

USERRA appeal. ID at 4; see Ellis v. Department of the Navy, 117 M.S.P.R. 511,

¶ 11 (2012).

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the