Opinion

De Edric Graham v. U.S. Postal Service

Court: Merit Systems Protection Board
Filed: Apr 7, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DE EDRIC EMMANUEL GRAHAM, DOCKET NUMBER

Appellant, CB-7121-25-0009-V-1

UNITED STATES POSTAL SERVICE, DATE: April 7, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

De Edric Emmanuel Graham , Inglewood, California, pro se.

Roderick Eves , Esquire, Erin Z. Dixon , Esquire, and Bobbi Mihal ¸ Esquire,

St. Louis, Missouri, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant filed a request for the Board to enforce a March 1, 2019

arbitration decision mitigating his February 2018 removal to a 14-day suspension

and to review a June 21, 2019 arbitration decision finding that the agency’s

May 2018 removal of the appellant was for “just cause.” For the reasons set forth

below, we DISMISS the appellant’s request for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, a preference-eligible, was employed as a Building

Equipment Mechanic with the agency. Request for Review (RFR) File, Tab 6

at 12-13. On February 8, 2018, the agency issued a letter removing the appellant,

effective February 10, 2018, for unacceptable conduct. Id. at 14-16. The

agency’s decision letter advised the appellant of his appeal rights, including his

right to file both a grievance and a Board appeal. Id. at 15-16. The appellant

filed a grievance and ultimately the union invoked arbitration over the appellant’s

February 2018 removal. 2 RFR File, Tab 5 at 8-9. On March 1, 2019, the

arbitrator issued a decision reducing the appellant’s February 2018 removal to a

14-day suspension and ordered the appellant to be made whole, minus the

suspension, and returned to duty. Id. at 7.

While the appellant’s first arbitration was pending a hearing, the agency

issued a second decision letter removing him from his position, effective May 12,

2018, based on substantively different misconduct. 3 Compare RFR File, Tab 6

at 14-16, with Tab 6 at 18-25. The agency’s second decision letter again advised

the appellant of his appeal rights, including his right to file both a grievance and a

Board appeal. RFR File, Tab 6 at 23-25. The appellant filed a grievance, and the

union again invoked arbitration challenging his second removal. RFR File, Tab 5

at 30-33. Then, on June 21, 2019, the same arbitrator denied the appellant’s

grievance and found that the agency issued the May 2018 removal for just cause.

Id. at 22.

Over 5 years later, on January 2, 2025, the appellant filed a request for

review with the Board alleging, among other things, that the agency did not

comply with the March 1, 2019 award ordering the agency to make him whole,

The appellant originally filed a grievance of the agency’s notice of proposed removal,

issued on December 21, 2017. RFR File, Tab 5 at 8-9.

The appellant remained in a non-pay, non-duty status after the effective date of the

removal action pending the disposition of his appeal. RFR File, Tab 6 at 16.

absent a 14-day suspension. RFR File, Tab 1 at 4, Tab 4 at 2, Tab 7 at 4. The

appellant also appears to be challenging the merits of the second removal and

asserts that the agency refused to comply with the first arbitration decision in

order to seek a more favorable decision in the second removal proceedings. RFR

File, Tab 1 at 4, Tab 7 at 4, Tab 8 at 3. The agency filed a motion to dismiss

arguing that the Board lacked jurisdiction over the arbitration decisions. RFR

File, Tab 6 at 4-11. 4

DISCUSSION OF ARGUMENTS ON REVIEW

As a general rule, an employee defined at 5 U.S.C. § 7511, who is 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

through the negotiated procedure, but not both. 5 U.S.C. § 7121(d). An

employee who elects to grieve may seek Board review of the arbitrator’s decision,

if he raises an allegation that the action was based on discrimination. Id.; Stroud

v. Department of Veterans Affairs, 2022 MSPB 43, ¶ 25.

In contrast to the rights generally applicable to the Federal employees set

forth above, a preference-eligible Postal Service employee affected by an action

appealable to the Board may both grieve and appeal the same action, each subject

to relevant timeliness requirements. Masdea v. U.S. Postal Service, 90 M.S.P.R.

556, ¶ 5 (2002). Because, however, 5 U.S.C. § 7121 does not apply to the Postal

After the record closed, the appellant filed additional submissions, including a

pleading entitled Statement of Procedural Irregularities, arguing that the agency

committed procedural errors, and another pleading entitled Rebuttal to Non Jurisdiction

Claim, arguing, among other things, the underlying merits of his case. RFR File,

Tab 12 at 4, Tab 13 at 4-6. The Board does not accept submissions filed after the close

of the record absent a motion seeking leave to file and describing the nature of and need

for the pleadings. 5 C.F.R. § 1201.114(a)(4), (k). The appellant did not file such a

motion. Furthermore, pursuant to 5 C.F.R. § 1201.114(a)(4), a party must show that

evidence submitted after the close of the record is new and material. Here, the

appellant’s arguments are largely duplicative of the appellant’s previous filings

submitted before the close of record and they do not alter the outcome of this case.

RFR File, Tabs 1, 4-5, 7-9. Accordingly, the evidence is neither new nor material, and

we decline to consider it.

Service, the Board has no jurisdiction to review an arbitrator’s decision

concerning a preference-eligible Postal Service employee. Id.; see Fedon v.

U.S. Postal Service, 78 M.S.P.R. 657, 660 (1998) (explaining that a

preference-eligible Postal Service employee can file both a grievance and a Board

appeal from the same action, but does not have a right of Board review of an

arbitration decision). Furthermore, the Board lacks the authority to enforce an

arbitration decision when there is no Board order involved. Cloutterbuck v.

Department of Labor, 88 M.S.P.R. 1, ¶ 5 (2001); see Hunter v. Department of the

Air Force, 83 M.S.P.R. 7, ¶ 11 (1999). Accordingly, the appellant does not have

a right to request Board review, or enforcement, of either arbitration decision, and

thus, we dismiss his request for review for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 5

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

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.

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:

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. 6 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 following

address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.