The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOWARD ROGERS, DOCKET NUMBER
Appellant, AT-0353-14-0081-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 10, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Howard Rogers, Cheraw, South Carolina, pro se.
Janelle M. Sherlock, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and authorities, 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
¶2 On October 1, 2009, the appellant accepted a rehabilitation modified
position as a full-time PS-6 Mail Processing Clerk at the Cheraw, South Carolina
Post Office. 2 Initial Appeal File (IAF), Tab 4 at 36-37, 44. On February 24,
2010, the agency notified him that his position would be abolished pursuant to a
“Function 4 Review,” that he would be involuntarily reassigned to a vacant
full-time position at the Post Office in Dillon, South Carolina, and that the agency
would provide moving expenses, mileage, per diem, and reimbursement for
movement of household goods. 3 Id. at 50-51. In the alternative, the agency
offered the appellant the option of a PS-6 part-time flexible position at his current
duty station, which he accepted effective July 17, 2010. Id. at 50-51, 55.
2
The appellant sustained a traumatic workplace injury in 1995, and the Office of
Workers’ Compensation Programs accepted his claim for cervical subluxation on or
about June 3, 1996. IAF, Tab 4 at 19-26.
3
The agency explained that Dillon is located about 35 miles away from Cheraw. IAF,
Tab 4 at 9 n.8. According to Google maps, however, it appears there are approximately
41.6 miles between the two towns.
3
¶3 Over 3 years later, the appellant filed a grievance apparently challenging
the possibility that, as a part-time flexible employee, his hours could be reduced.
See IAF, Tab 1 at 4; see also IAF, Tab 4 at 8. On August 28, 2013, the union
withdrew the grievance as part of a Step 2 settlement agreement. IAF, Tab 4
at 62. The appellant subsequently filed an appeal with the Board, alleging
improper restoration and involuntary resignation occurring on the date of the
settlement agreement, August 28, 2013. IAF, Tab 1 at 3.
¶4 The agency moved to dismiss the appeal for lack of jurisdiction, noting that
the basis of the appeal was unclear, but that no possible grounds existed to find
Board jurisdiction. IAF, Tab 4 at 6-11. Specifically, the agency contended that:
(1) to the extent the appeal pertained to the possibility that the appellant’s hours
might be reduced, such is not an appealable adverse action because he was a
part-time flexible employee; (2) to the extent the appeal pertained to the
appellant’s reassignment to a part-time flexible position, such action was not
appealable as it was a voluntary action; (3) to the extent the appellant alleged
improper restoration, his claim failed because he had not been out of work due to
a compensable injury and, in any event, he was given the option of a full-time
regular position within the local commuting area, but chose the part-time flexible
position; and (4) the appeal was untimely filed. Id. at 8-11.
¶5 The administrative judge subsequently ordered the appellant to carefully
review the agency’s motion to dismiss and to fully respond to its contentions on
jurisdiction. IAF, Tab 5. In his response, the appellant stated, among other
things, that he had a compensable injury; that the full-time regular position he
was offered was outside of the installation, contrary to the collective bargaining
agreement; and that he had been subject to an adverse personnel action because,
working as a part-time flexible, he had to use sick and annual leave to “make up
forty hours in a work week.” IAF, Tab 6 at 1-4.
¶6 In a January 26, 2014 initial decision, the administrative judge dismissed
the appeal for lack of jurisdiction on the grounds that the appellant’s
4
reassignment was voluntary. IAF, Tab 7, Initial Decision (ID). Regarding the
appellant’s claims of disability discrimination, the administrative judge explained
that, absent an otherwise appealable action, allegations of discrimination are
insufficient to bring an appeal within the Board’s jurisdiction. See ID.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The appellant petitioned for review of the initial decision. Petition for
Review (PFR) File, Tab 1. He appears to argue that the Board has jurisdiction
over his claim because an employee’s perception of a prohibited personnel
practice has a negative effect on organizational effectiveness. Id. at 1-2. Further,
he appears to argue that the Board should review an unspecified regulation. Id.
at 2-3. The agency opposed the petition for review on the grounds the appellant
failed to state any new or material facts or any allegation of judicial error, and
failed to show any evidence of a prohibited personnel practice. PFR File, Tab 3.
In reply to the agency’s response, the appellant argues that the agency has
violated the Rehabilitation Act; that although the agency purportedly abolished
the full-time clerk position, he is still in Cheraw working 40 hours per week plus
overtime; that he has lost his scheduled day off and holiday pay; and that his
driving restriction would not have allowed him to commute to Dillon. PFR File,
Tab 4.
¶8 On review, the appellant fails to show that his newly-raised arguments
regarding an alleged prohibited personnel practice or an alleged agency violation
of the Rehabilitation Act are based upon new and material evidence that was
previously unavailable to him below despite his due diligence. See PFR File,
Tabs 1, 4. Accordingly, his arguments need not be considered by the Board. See
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
¶9 Further, the appellant does not challenge, and we discern no reason to
disturb, the administrative judge’s finding that the appellant’s acceptance of the
5
part-time flexible position in Cheraw was voluntary. See, e.g., Smitka v. U.S.
Postal Service, 66 M.S.P.R. 680, 687 (1995) (the mere fact that an employee is
faced with unpleasant alternatives does not render his choice of one of those
alternatives involuntary), aff’d, 78 F.3d 605 (Fed. Cir. 1996). As such, the Board
lacks jurisdiction over his appeal. See Burgess v. U.S. Postal Service,
68 M.S.P.R. 469, 473 (1995) (the Board lacks jurisdiction over voluntary
actions).
¶10 Insofar as the appellant seeks to invoke the Board’s regulation review
authority, he has failed to provide the requisite information pursuant to 5 C.F.R.
§ 1203.11(b), which requires, inter alia, a citation identifying the regulation being
challenged, a statement describing in detail the reasons why the regulation would
require an employee to commit a prohibited personnel practice, specific
identification of the prohibited personnel practice at issue, and a description of
the action the requester would like the Board to take. See Burroughs v. Office of
Personnel Management, 94 M.S.P.R. 315, ¶ 5 (2003), aff’d, 89 F. App’x 699
(Fed. Cir. 2004). Accordingly, we deny his possible request for regulation
review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
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
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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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The 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.