Bernice E. McClain v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BERNICE E. MCCLAIN, DOCKET NUMBER

Appellant, AT-0752-13-0974-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: December 10, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alinda Favors, Riverdale, Georgia, for the appellant.

Randle Smith, Esquire, 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 her involuntary retirement and restoration claims for lack of Board

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

on an erroneous interpretation of statute or 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).

¶2 The appellant, a Mail Processing Clerk, suffered an on-the-job injury in

1996. See Initial Appeal File (IAF), Tab 2 at 18, Tab 6 at 7. She eventually

separated from the agency in 2003, IAF, Tab 6 at 7, after several attempts at

modified duty, e.g., IAF, Tab 2 at 21, 29, and years of leave, id. at 2. The

appellant applied for, and was granted, disability retirement benefits. See Bernice

McClain v. Office of Personnel Management, MSPB Docket No. AT-844E-03-

0097-I-1, Initial Decision (Feb. 21, 2003) (Board decision reversing the Office of

Personnel Management’s denial of benefits). Approximately 10 years later, she

filed the appeal currently before us, alleging that she was “forced to retire

normally and denied [workers’ compensation].” IAF, Tab 1 at 2.

¶3 The administrative judge construed the appeal as one of involuntary

retirement. IAF, Tab 4 at 1. She then also questioned whether the appellant was

raising a restoration claim. IAF, Tab 9 at 1. Accordingly, the administrative

judge ordered the appellant to meet her jurisdictional burden for either. IAF, Tab

4 at 2-3 (jurisdictional order for claim of involuntary retirement), Tab 9 at 1-3

(jurisdictional order for restoration claim), Tab 14 at 1-3 (second jurisdictional

order for restoration claim, warning that the appellant had not yet presented

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evidence that she requested restoration). Both parties responded. IAF, Tabs 6-8,

10-12, 18.

¶4 Without holding the requested hearing, IAF, Tab 1 at 1, the administrative

judge dismissed the appeal for lack of jurisdiction, IAF, Tab 19, Initial Decision

(ID) at 1. The appellant has filed a petition for review. 2 Petition for Review

(PFR) File, Tabs 1-2. The agency has not filed a response.

The appellant failed to present a nonfrivolous allegation that she was subjected to

an involuntary retirement within the Board’s jurisdiction.

¶5 In her petition, the appellant again asserts that she was subjected to a

“forced removal.” PFR File, Tab 1 at 1. However, we agree with the

administrative judge’s conclusion that the appellant failed to meet her

jurisdictional burden for this claim or to present nonfrivolous allegations

warranting a jurisdictional hearing. See ID at 2-3.

¶6 The appellant bears the burden of proving that the Board has

jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). An appellant who raises nonfrivolous

issues of fact relating to jurisdiction that cannot be resolved simply on

submissions of documentary evidence is entitled to a hearing on the jurisdictional

issue. See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1427-28

(Fed. Cir. 1984).

¶7 An involuntary retirement is equivalent to a forced removal and may be

appealable to the Board under chapter 75. See Bean v. U.S. Postal

Service, 120 M.S.P.R. 397, ¶ 7 (2013); Pariseau v. Department of Air Force, 113

M.S.P.R. 370, ¶ 11 (2010). However, a U.S. Postal Service employee may only

file a Board appeal under chapter 75 if she is covered by 39 U.S.C. § 1005(a)

or 5 U.S.C. § 7511(a)(1)(B). 5 U.S.C. § 7511(b)(8). Thus, to appeal an

2

Although the acknowledgment order erroneously stated that the petition for review

was untimely, see PFR File, Tab 3 at 1, it was, in fact, timely, compare ID at 5 (notice

that the initial decision would become final on June 13, 2014, unless a petition for

review was filed by that date), with PFR File, Tab 1 (petition postmarked June 13,

2014, and received June 20, 2013).

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involuntary retirement or other adverse action under chapter 75, a U.S. Postal

Service employee (1) must be 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) must have completed 1 year of current

continuous service in the same or similar positions. 3 See Toomey v. U.S. Postal

Service, 71 M.S.P.R. 10, 12 (1996).

¶8 Here, the record shows that the appellant is not preference eligible. IAF,

Tab 1 at 1, Tab 6 at 7. In addition, the record contains no indication that she was

a management or supervisory employee or that she was an employee engaged in

personnel work in other than a purely nonconfidential clerical capacity. See IAF,

Tab 6 at 7 (position held was that of Mail Processing Clerk). The appellant has

not argued that she fell within one of those covered categories. Instead, she

requested that the Board exercise discretion and hear her case. IAF, Tab 8 at 1.

However, the Board has no such discretion. See Schmittling v. Department of

Army, 219 F.3d 1332, 1337 (the Board only has jurisdiction where Congress has

provided it, and without jurisdiction a decision on the merits would be void). In

the absence of a nonfrivolous allegation that she fell within one of the categories

of U.s. Postal Service employees with chapter 75 Board appeal rights, the

administrative judge properly dismissed her involuntary retirement claim for lack

of Board jurisdiction, without a hearing.

3

We note that the administrative judge’s jurisdictional order described how the

appellant could show that her retirement was involuntary, without providing explicit

notice of what was required to establish that she was a U.S. Postal Service employee

covered under 5 U.S.C. § 7511(a)(1)(B) or 39 U.S.C. § 1005(a). IAF, Tab 4 at 2-3; see

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an

appellant must be apprised of what she must establish in order to invoke the Board’s

jurisdiction). However, that lack of notice was cured in the initial decision. See

Caracciolo v. Department of Treasury, 105 M.S.P.R. 663, ¶ 11 (2007) (the failure to

provide an appellant with proper Burgess notice in an acknowledgment order or

show-cause order can be cured if the initial decision itself puts the appellant on notice

of what she must do to establish jurisdiction so as to afford her the opportunity to meet

her jurisdictional burden for the first time on review).

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The appellant failed to meet her jurisdictional burden regarding her restoration

claim.

¶9 In her petition, the appellant again argues that she was wrongfully denied

restoration. PFR File, Tab 1 at 1-2, Tab 2 at 1-2. However, we agree with the

administrative judge’s conclusion that the appellant failed to meet her

jurisdictional burden for this claim. ID at 3-5.

¶10 As previously discussed, an appellant is entitled to a jurisdictional hearing

if she makes nonfrivolous allegations of jurisdiction. See Manning, 742 F.2d at

1427-28. However, bare assertions of fact, without support, do not constitute

nonfrivolous allegations. See Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 11

(2009). As our reviewing court has noted, “Although an appellant need not prove

her entire case before she is entitled to a hearing, the [B]oard may request

sufficient evidence to determine if, in the first instance, there is any support for

what otherwise might be bald allegations.” Briscoe v. Department of Veterans

Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995).

¶11 Below, the appellant responded to the administrative judge’s jurisdiction

order, claiming that she was partially recovered, and could return to work with

appropriate modifications. IAF, Tab 10 at 2, Tab 12 at 2. She later suggested

that she could return to work with no restrictions. IAF, Tab 18 at 1. To establish

jurisdiction over a restoration claim under either scenario, an appellant must

prove by preponderant evidence, inter alia, that she requested restoration.

Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 (Fed. Cir. 2011)

(jurisdictional requirements for restoration claim involving a partially recovered

individual); Payton v. Department of Homeland Security, 113 M.S.P.R. 463, ¶ 6

(jurisdictional requirements for a claim involving a fully recovered individual),

aff’d 403 F. App’x 496 (Fed. Cir. 2010). After reviewing the record, the

administrative judge warned that the appellant had not presented any evidence

that she requested restoration. IAF, Tab 14 at 2. Therefore, the judge ordered the

appellant to identify any such request with particularity, including when she

6

requested restoration, who she spoke with when making the request, how she

made the request, what documentation she provided with the request, and what

positions she requested or that would have fit within her limitations. Id. at 3.

The appellant responded but did so without providing any of the information the

administrative judge requested. See IAF, Tab 18.

¶12 Because the record includes only bare assertions that the agency denied

requests for restoration, without any information about those requests, see IAF,

Tab 10 at 1-2, we find no error in the administrative judge’s dismissal of the

restoration claim, see ID at 3-5. The appellant failed to meet her jurisdictional

burden and failed to present nonfrivolous allegations warranting a jurisdictional

hearing.

¶13 On review, the appellant submitted evidence that was not submitted below.

See PFR File, Tab 1 at 5-14. However, the Board will not consider evidence

submitted for the first time with the petition for review, absent a showing that it

was unavailable before the record was closed despite the party’s due diligence.

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the appellant

made no such showing for the evidence dated prior to her final pleading and the

initial decision. Compare PFR File, Tab 1 at 5-9 (evidence dated March 17-24,

2014), with IAF, Tab 18 (the appellant’s April 4, 2014 response to the

jurisdictional order), and ID at 1 (dated May 8, 2014). Therefore, we will not

consider it. For the same reason, we will not consider her claims that she

“submitted documentation on numerous requests to the [a]gency specifically on

March 2013, May 2013, August 2013, October 2013, Jan[uary] 2014, March 17,

2014, and May 1, 2014.” PFR File, Tab 2 at 2. Although this provides some

further detail regarding her purported restoration requests, the appellant failed to

present the information below. For the remaining evidence—correspondence with

the Office of Workers’ Compensation Programs regarding a “Notice of

Recurrence” dated after the initial decision, see PFR File, Tab 1 at 10-14—the

appellant failed to show how it relates to her Board appeal against the U.S. Postal

7

Service. We are not persuaded that it requires a different result or further action.

See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will

not grant a petition for review based on new evidence absent a showing that it is

of sufficient weight to warrant an outcome different from that of the initial

decision).

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

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.

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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.