The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN WHEELER BELL, DOCKET NUMBER
Appellant, DC-0752-14-0613-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 24, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Wheeler Bell, Takoma Park, Maryland, pro se.
Stephen W. Furgeson, Esquire, Landover, Maryland, 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 his reduction in force (RIF) demotion 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the administrative 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, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. 2 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 The appellant has appealed a demotion that was the result of a RIF. Initial
Appeal File (IAF), Tab 1 at 3. The agency filed a motion to dismiss the appeal
asserting that the appellant was not preference eligible and therefore the Board
lacks jurisdiction to hear the appeal. IAF, Tab 5 at 7-14. The administrative
judge issued an order to show cause explaining the Board’s jurisdiction over RIF
actions filed by U.S. Postal Service employees, including the statutory definition
of preference eligible, and ordering the appellant to file evidence and argument
that could establish the Board’s jurisdiction, including documentary evidence
such as copies of his DD Form 214 (Certificate of Release or Discharge from
Active Duty). IAF, Tab 10. The appellant did not respond to the order to show
cause and, on July 17, 2014, the administrative judge dismissed his appeal,
2
There is an issue regarding the timeliness of the petition for review. Petition for
Review (PFR) File, Tabs 1-3. However, we have not decided that issue because the
petition for review fails to meet the Board’s criteria for review for the reasons set forth
in this order. See Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 12,
aff’d, 404 F. App’x 466 (Fed. Cir. 2010).
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without holding a hearing, for lack of jurisdiction. IAF, Tab 11, Initial
Decision (ID).
¶3 The appellant has filed a petition for review, including alleged new
evidence to support a nonfrivolous allegation that he is preference eligible.
Petition for Review (PFR) File, Tab 1. The agency has not filed a response to the
appellant’s petition for review.
ANALYSIS
¶4 The appellant’s alleged new evidence consists of two copies of a DD
Form 214 documenting his separation from the U.S. Marine Corps in 1986, and a
letter dated September 30, 2015, from the Department of Veterans Affairs stating
that he is a veteran with a service-connected disability receiving compensation.
PFR File, Tab 1 at 4-6. Under 5 C.F.R. § 1201.115, 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). To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,
564 (1989); 5 C.F.R. § 1201.115(d). The appellant has not shown that the
information contained in the documents filed with his petition for review was
unavailable prior to the record closing below.
¶5 Even if the appellant could establish that this information is new, it is not
material to the Board’s jurisdictional determination. To be material, the alleged
new evidence must be of sufficient weight to warrant an outcome different from
that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345,
349 (1980).
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
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Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Except as otherwise provided
by law, U.S. Postal Service employees are deemed not to be employees under
title 5 of the United States Code. See 5 U.S.C. § 2105(e). The provisions of
title 5 relating to a preference eligible as defined in 5 U.S.C. § 2108(3) apply to
an employee of the U.S. Postal Service in the same manner and under the same
conditions as if the employee were subject to the competitive service. 39 U.S.C.
§ 1005(a)(2). Thus, a preference-eligible employee of the U.S. Postal Service
who has been demoted by a RIF is entitled to appeal that action to the Board.
Love v. U.S. Postal Service, 76 M.S.P.R. 490, 493 (1997); see 39 U.S.C.
§ 1005(a)(2); 5 U.S.C. § 3501(b); 5 C.F.R. §§ 351.202(a)(2), 351.901.
¶7 A veteran who has served on active duty in the armed forces during
statutorily specified time periods and was discharged under honorable conditions
is preference eligible. 5 U.S.C. § 2108(1)-(3). A disabled veteran who served on
active duty in the armed forces, was separated under honorable conditions, and
has established the present existence of a service-connected disability or is
receiving compensation, disability retirement benefits, or a pension because of a
public statute administered by the Department of Veterans Affairs or a military
department is also preference eligible. 3 Id.
¶8 The DD Form 214 the appellant has submitted on review shows that he
received an entry-level separation. PFR File, Tab 1 at 5-6. According to the
Marine Corps Separation and Retirement Manual, an entry-level separation is an
uncharacterized administrative separation. Marine Corps Order 1900.16, Chapter
6, ¶ 6205 (2013), available at http://www.marines.mil/News/Publications.aspx.
Uncharacterized entry-level separations are considered “under conditions other
3
There is an exception to the definition of veteran and disabled veteran that does not
apply to the appellant. See 5 U.S.C. § 2108(1)-(2) (referencing exception provided
under 5 U.S.C. § 2108a). A person expecting to be discharged or released from active
duty under honorable conditions can be treated as a veteran or disabled veteran for the
purposes of making an appointment in the competitive service for a limited period of
time while their discharge is pending. 5 U.S.C. § 2108a.
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than dishonorable” by the Department of Veterans Affairs. 38 C.F.R.
§ 3.12(k)(1). Because the appellant did not serve during the time periods
identified in 5 U.S.C. § 2108(1) and was not separated under honorable
conditions, he is not preference eligible as defined at 5 U.S.C. § 2108(1)-(3), and
the Board lacks jurisdiction over his appeal. Dooley v. Tennessee Valley
Authority, 43 M.S.P.R. 462, 467 n.4 (1990) (stating that an employee seeking to
rely on his discharge to show his eligibility to file an appeal can rely only on a
separation effected under “honorable conditions”).
¶9 The September 30, 2015 letter from the Department of Veterans Affairs
states that the appellant was separated from active duty under honorable
conditions. PFR File, Tab 1 at 4. However, the DD Form 214 the appellant
submitted does not support this conclusion. The letter from the Department of
Veterans Affairs is of insufficient weight to warrant an outcome different from
that of the initial decision in light of the DD Form 214 showing that the appellant
was separated under other than dishonorable conditions.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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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 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
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.