Opinion

Luis J Soto v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Oct 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LUIS J. SOTO, DOCKET NUMBER

Appellant, NY-0752-23-0059-I-1

UNITED STATES POSTAL SERVICE, DATE: October 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cindy M. Cruz-Rivera , Carolina, Puerto Rico, for the appellant.

Krista M. Irons , Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the appellant’s removal. 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

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the Board has jurisdiction over this

appeal.

For the first time on review, the appellant primarily argues that the Board

lacks jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1. The

Board will generally not consider an argument raised for the first time in a

petition for review absent a showing that it is based on new and material evidence

not previously available despite the party’s due diligence; however, because the

appellant’s argument implicates the Board’s jurisdiction, we will address his

claim. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016): Poole v.

Department of the Army, 117 M.S.P.R. 516, ¶ 9 (2012).

A Postal Service employee may file a Board appeal challenging an adverse

action taken under 5 U.S.C. chapter 75 only if: (1) he 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) he has completed

1 year of continuous service in the same or similar positions. See Toomey v. U.S.

Postal Service, 71 M.S.P.R. 10, 12 (1996). Here, the administrative judge found

that the Board had jurisdiction over the appellant’s removal. Initial Appeal File

(IAF), Tab 40, Initial Decision (ID) at 1. On review, the appellant argues that the

administrative judge erred in assuming jurisdiction over his appeal. PFR File,

Tab 1 at 8-14.

In arguing that the Board lacks jurisdiction over the appeal he filed, the

appellant appears to assert that the underlying matter in his appeal is an unfair

labor practice (ULP) complaint, which is within the jurisdiction of the Federal

Labor Relations Authority (FLRA). PFR File, Tab 1 at 8-17. Specifically, he

appears to argue that the agency committed a ULP when it improperly removed

him in violation of the collective bargaining agreement (CBA) and failed to

advise him of his right to “continue his previous arbitration process or present a

new one on the removal,” thereby forcing him to appeal to the Board. Id.

Therefore, he argues that the administrative judge should have dismissed his

appeal before holding a hearing on the merits. Id.; IAF, Tab 15 at 4-9. We find

his arguments unavailing.

The Board has previously explained that the Civil Service Reform Act

(CSRA) replaced the prior patchwork system of laws and gave the FLRA

authority over some matters but precluded the FLRA from adjudicating others,

including removal actions that fall under the Board’s authority. Marshall v.

Department of Veterans Affairs, 106 M.S.P.R. 478, ¶¶ 11-14 (2007).

Specifically, it explained that under 5 U.S.C. § 7116(d), “[i]ssues which can

properly be raised under an appeals procedure may not be raised [before the

FLRA] as unfair labor practices.” Marshall, 106 M.S.P.R. 478, ¶ 13. As in

Marshall, the “appeals procedure” relevant to the instant case is provided by the

Board, which, under the CSRA, must adjudicate employee appeals from removals.

Id.; see also 5 U.S.C. §§ 7512, 7513(d). Therefore, the propriety of the

appellant’s removal is properly raised in an appeal filed with the Board and may

not be raised as a ULP before the FLRA. Marshall, 106 M.S.P.R. 478, ¶ 14; see

Dept. of Commerce v. Federal Labor Relations Authority, 976 F.2d 882, 888 (4th

Cir. 1992).

To the extent that the appellant argues that the agency forced him to

proceed in this forum because it failed to advise him of his right to continue his

pending grievance or allow him to file a new grievance on his removal in its

decision letter, his argument is without merit. PFR File, Tab 1 at 8-14.

Generally, an individual affected by a personnel action, such as a removal, that is

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

may contest the action before the Board or in a grievance, but not both. 5 U.S.C.

§ 7121(e)(1); Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 5 (2008).

However, this binding election of remedies does not apply to Postal Service

employees with appeal rights, who are entitled to pursue both a grievance and a

Board appeal simultaneously. See Mays v. U.S. Postal Service, 995 F.2d 1056,

1058 (Fed. Cir. 1993); Anderson, 109 M.S.P.R. 558, ¶ 5.

First, the appellant conceded below that the agency advised him of his right

to file a grievance in its notice of proposed removal and testified that he did so.

ID at 35-36; Hearing Audio, Tab 35-15 (testimony of the appellant); IAF, Tab 8

at 37. The appellant also acknowledges in his petition for review that “he was

warned of his right to file a grievance” in the notice of proposed removal, and he

filed a grievance. PFR File, Tab 1 at 12. According to the record, the appellant

is a preference eligible and had completed more than 1 year of continuous service

in his position before his removal. IAF, Tab 8 at 22. Therefore, to the extent that

he filed a grievance on his proposed removal, he was not prohibited from filing a

Board appeal. Thus, we agree with the administrative judge that the Board has

jurisdiction over his appeal.

Accordingly, we deny the petition for review and affirm the initial

decision, which sustained the agency’s removal decision based on charges of

improper conduct and failure to follow instructions.

NOTICE OF APPEAL RIGHTS 2

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. 3 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