The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANTREECIA T. YOUNG, DOCKET NUMBER
Appellant, AT-0752-14-0978-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Malcolm McCrary, Conyers, Georgia, for the appellant.
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 her removal 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a former nonpreference eligible mail handler, filed an appeal
challenging her “emergency placement in [an] off-duty status” and notice of
removal. Initial Appeal File (IAF), Tab 1 at 1-2; see Petition for Review (PFR)
File, Tab 4 at 7 (Postal Service Form 50). After providing the appellant notice of
her burden to establish Board jurisdiction over her appeal, the administrative
judge dismissed the appeal for lack of jurisdiction, finding that: (1) the appellant
lacked adverse action appeal rights to the Board because she was not an employee
within the meaning of 5 U.S.C. § 7511(a)(1)(B) or an employee within the
purview of the Postal Employee Appeal Rights Act (PEARA), 39 U.S.C.
§ 1005(a); (2) the appellant’s claim was not yet ripe for adjudication because the
removal had been proposed but not yet effected; and (3) in the absence of an
appealable action, the Board lacked jurisdiction to adjudicate the appellant’s
apparent prohibited personnel practice claim. IAF, Tab 2 at 2, Tab 5, Initial
Decision (ID). The appellant has filed a timely petition for review, and the
agency has responded in opposition. PFR File, Tabs 1, 4.
3
¶3 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A Postal Service
employee may appeal an adverse action under 5 U.S.C. chapter 75 only if she is a
preference eligible, a management or supervisory employee, or an employee
engaged in personnel work in other than a purely nonconfidential clerical
capacity. 39 U.S.C. § 1005(a); 5 U.S.C. §§ 7511(a)(1)(B), (b)(8); Gordon-
Cureton v. U.S. Postal Service, 105 M.S.P.R. 165, ¶ 6 (2007).
¶4 The appellant does not dispute that she is a nonpreference eligible but
appears to generally assert that she has appeal rights under PEARA. PFR File,
Tab 1. However, she has not alleged or provided any evidence that she held a
management or supervisory position or that she was engaged in personnel work in
other than a purely nonconfidential clerical capacity at the time of her removal.
See id. Thus, we agree with the administrative judge that the appellant has failed
to meet her burden to nonfrivolously allege Board jurisdiction over her adverse
action appeal. See ID at 3.
¶5 The appellant also argues that the administrative judge incorrectly found
that the appeal was not yet ripe for adjudication because there was no evidence
that the proposed removal had been effected. See PFR File, Tab 1 at 2-3; ID
at 3-4. The June 6, 2014 removal notice states: “[t]his is advanced written notice
that you will be removed from the Postal Service effective at the close of business
on July 11, 2014, or no sooner than thirty (30) days from the date of your receipt
of this letter.” IAF, Tab 4 at 11. The appellant stated on her initial appeal form
that she received the agency decision on June 6, 2014, and, thus, it appears that
the removal was final and ripe for adjudication as of July 11, 2014. IAF, Tab 1
at 2. Accordingly, the administrative judge was incorrect in his finding that the
4
appeal, filed on September 4, 2014, was not yet ripe for adjudication. 2 In light of
the fact that the appellant does not have any adverse action Board appeal rights,
however, the administrative judge’s incorrect finding as to ripeness is immaterial.
See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)
(administrative judge’s procedural error is of no legal consequences unless it is
shown to have adversely affected a party’s substantive rights).
¶6 Lastly, the appellant has filed a motion for leave to submit an additional
pleading because she believes that some documents may have been overlooked,
not included, or not readily available below. PFR File, Tab 5; see 5 C.F.R.
§ 1201.114(a)(5). We DENY the motion because she has not explained the nature
of the pleading, nor shown that the additional pleading would contain evidence or
argument that is new and material and was not readily available before the record
closed. See Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 23
(2013); see also 5 C.F.R. §§ 1201.114(a)(5), (k).
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
2
Although we need not address the issue, the adverse action appeal appears to have
been untimely, rather than prematurely, filed. A removal appeal must be filed no later
than 30 days after the effective date, if any, of the action being appealed, or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is later.
5 C.F.R. § 1201.22(b)(1). In the instant case, the appellant received notice of the
adverse action on June 6, 2014, and the effective date of the adverse action was July 11,
2014. IAF, Tab 1 at 2, Tab 4 at 11-13. However, she did not file the appeal until
September 4, 2014. IAF, Tab 1.
5
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.
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.