Opinion

Johnny Lucas v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Oct 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHNNY L. LUCAS, JR., DOCKET NUMBER

Appellant, CB-7121-21-0006-V-1

UNITED STATES POSTAL SERVICE, DATE: October 7, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles M. Tillman , Irving, Texas, for the appellant.

Nadalynn F. Hamilton , Esquire, Plano, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a request for review of an arbitration decision that

upheld his removal. For the reasons set forth below, we DISMISS the request for

review for lack of jurisdiction and FORWARD the appellant’s submission to the

Dallas Regional Office for docketing as a removal appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

The appellant was a preference eligible PS-07 Bulk Mail Clerk for the

agency. Request for Review (RFR) File, Tab 1 at 1. On July 18, 2018, the

agency issued a decision removing him for attendance reasons, effective

August 6, 2018. RFR File, Tab 2 at 10-11. The appellant grieved his removal,

the matter proceeded to arbitration, and on March 30, 2020, the arbitrator issued

an award denying the grievance. Id. at 35-42. The appellant’s union received a

copy of the award on May 7, 2020. Id. at 35.

On November 3, 2020, the appellant, through his union representative, filed

the instant request for arbitration review. RFR File, Tab 1. The Clerk of the

Board issued an acknowledgment order, notifying the appellant of the applicable

jurisdictional standard. RFR File, Tab 3 at 2-3. The Clerk of the Board also

notified the appellant that his request for review appeared to be untimely and

directed him to file evidence and argument on the issue. Id. at 3. The appellant

responded on both the jurisdiction and timeliness issues. RFR File, Tab 5. The

agency responded as well, arguing that the appellant’s request for review was

untimely and that he failed to show good cause for the delay. RFR File, Tab 6.

The appellant has moved to strike the agency’s response as untimely itself, RFR

File, Tab 7, and the agency has moved to strike the appellant’s motion as not

contemplated by the Board’s regulations, RFR File, Tab 8.

ANALYSIS

As a general rule, an individual affected by a personnel action that is both

appealable to the Board and covered by a negotiated grievance procedure may

contest the action before the Board or via a grievance, but not both; an individual

who elects to grieve may seek Board review of the final decision on the grievance

if he claims that the action was based on prohibited discrimination. See 5 U.S.C.

§ 7121(d). However, 5 U.S.C. § 7121(d) does not apply to the U.S. Postal

Service, and Postal Service employees have no right to Board review of an

arbitrator’s award. See Clements v. U.S. Postal Service, 101 M.S.P.R. 218, ¶ 3

(2006); Marjie v. U.S. Postal Service, 70 M.S.P.R. 95, 98 (1996); Lucas v. U.S.

Postal Service, 39 M.S.P.R. 459, 461 (1989). Therefore, regardless of the

timeliness issue, the appellant’s request for arbitration review must be dismissed

for lack of jurisdiction. 2 See Ramos v. Department of the Army, 48 M.S.P.R. 399,

403 (1991) (declining to reach the timeliness issue in light of dismissal on

jurisdictional grounds), aff’d, 956 F.2d 1173 (Fed. Cir. 1992) (Table).

However, the appellant, as a preference-eligible veteran, has the right to

appeal his removal directly to the Board, and he may do so despite having already

filed a grievance on the matter. See Fedon v. U.S. Postal Service, 78 M.S.P.R.

657, 660 (1998); Marjie, 70 M.S.P.R. at 98. We therefore forward the appellant’s

submission to the Board’s Dallas Regional Office for docketing as a removal

appeal under 5 U.S.C. chapter 75.

We note that the appellant’s November 3, 2020 request for arbitration

review was filed more than 2 years after the effective date of his removal. RFR

File, Tab 1, Tab 2 at 10. Therefore, even treating the filing date of the request for

arbitration review as the filing date for the removal appeal, see Hammond v. U.S.

Postal Service, 72 M.S.P.R. 263, 265 (1996), there is still a significant timeliness

issue. After docketing the appeal, the administrative judge should inform the

appellant that his appeal appears to be untimely and provide him the opportunity

to establish that the appeal was timely filed or that there was good cause for the

delay. See 5 C.F.R. §§ 1201.22(b), 1201.154.

In light of the foregoing, we decline to rule on the parties’ competing motions to

strike. Regardless of the information contained in the agency’s reply to the

acknowledgment order, we would conclude that the Board lacks jurisdiction over this

request for arbitration review.

NOTICE OF APPEAL RIGHTS 3

This is the Board’s final decision on the appellant’ request for review of the

arbitration decision. 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. 4 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