Opinion

Rosemary Anaya v. United States Postal Service

Court
Merit Systems Protection Board
Filed
Aug 27, 2015
Status
Unpublished
Cited by
0 cases
Authority
More cited than 35.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSEMARY ANAYA, DOCKET NUMBER

Appellant, SF-3443-15-0094-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: August 27, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Guillermo Mojarro, Upland, California, for the appellant.

Scott L. Zielinski, Esquire, Long Beach, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her 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

regulation or the erroneous application of the law to the facts of the case; the

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 received a notice from the Department of the Treasury

(Treasury) informing her that the U.S. Postal Service (USPS), her former

employer, claimed she owed it a debt of $3296.05, the USPS had referred the debt

to the Treasury for collection, and the Treasury would begin collecting the debt

via administrative offset from her retirement annuity. Initial Appeal File (IAF),

Tab 6 at 4-6. The appellant filed an appeal in which she claimed that she did not

owe the USPS anything and that the Treasury’s collection efforts were improper.

IAF, Tab 1. The administrative dismissed the appeal for lack of jurisdiction

without a hearing. IAF, Tab 17, Initial Decision.

¶3 The appellant has filed a petition for review in which she merely states that

the initial decision is wrong and requests de novo review. Petition for Review

File, Tab 1 at 4. She also submits documents for the first time on review that

appear to show that the Treasury has referred the debt to a private collection

agency, id. at 5-6, but the documents do not pertain to the threshold issue of

jurisdiction and they are not new and material evidence, 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

3

to warrant an outcome different from that of the initial decision). Therefore, we

have not relied on them.

¶4 The Board has limited jurisdiction to review whether a former employing

agency provided the required due process before having the Office of Personnel

Management offset a debt against the appellant’s annuity, but only when the issue

is integral to the disposition of an otherwise appealable action. Secrist v. U.S.

Postal Service, 115 M.S.P.R. 199, ¶ 6 (2010); Ramirez v. Department of the

Army, 86 M.S.P.R. 211, ¶ 11 (2000). The appellant has the burden of establishing

jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).

¶5 The agency’s submissions suggest that the debt is for unpaid insurance

premiums and/or overdrawn leave, IAF, Tab 15 at 5-8, but there is nothing in the

record that suggests that this debt is integral to the disposition of an otherwise

appealable action. Furthermore, the appellant does not allege that the USPS did

not afford her the required due process. Because the appellant has not shown

jurisdiction over the underlying appeal, the Board lacks jurisdiction to consider

her debt collection claim.

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

4

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 an appeal to the

United States 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 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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