The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINALD L. BARNETT, DOCKET NUMBER
Appellant, AT-3330-15-0453-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John R. Macon, Memphis, Tennessee, for the appellant.
Cynthia R. Allen, Memphis, Tennessee, 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 appeal 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 on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
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 filed an appeal alleging that the agency violated his rights
under the Veterans Employment Opportunities Act of 1998 (VEOA) when it
failed to allow him to compete for a Full-time Regular Mail Handler Position.
Initial Appeal File (IAF), Tab 1. 2 It is undisputed that the appellant has held the
position of Part-time Regular Mail Handler since April 2007. Id. at 27. In
September 2013, the appellant submitted an application to the agency requesting
to be converted to a Full-time Regular Mail Handler position. Id. The agency
notified the appellant that he was not eligible to be converted to a Full‑time
Regular Mail Handler because, under the terms of the Memorandum of
Understanding with the National Postal Mail Handlers Union, only Part-time
Flexible employees were allowed to convert to Full-time Regular Mail Handler
positions. Id. at 48.
¶3 The administrative judge found that, because only internal candidates were
allowed to compete for the positions at issue, the appellant failed to establish that
2
The appellant also raised a claim under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301‑4333) (USERRA).
IAF, Tab 1 at 3, 9. However, the appellant’s USERRA claim previously was dismissed
for lack of jurisdiction in Barnett v. U.S. Postal Service, MSPB Docket No. AT-3443-
14-0844-I-1, Initial Decision (Sept. 3, 2014). Because a petition for review was not
filed, the initial decision became the Board’s final decision on October 8, 2014.
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the agency denied him the opportunity to compete under merit promotion
procedures for a vacant position for which the agency accepted applications from
outside its own work force. IAF, Tab 13, Initial Decision (ID) at 4. Thus, the
administrative judge found that the Board does not have jurisdiction over the
appellant’s claim under VEOA. Id. The administrative judge further found that,
even if she were to find that the Board has jurisdiction over the appellant’s VEOA
claim, VEOA does not grant the Board the authority to address his allegations
that the agency violated the collective bargaining agreement (CBA) by failing to
consider him for a Full-time Regular Mail Handler position. Id. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdiction.
¶4 The appellant has filed a petition for review in which he asserts that the
administrative judge misinterpreted 5 U.S.C. § 3304(f), the statute that provides
preference-eligible individuals the right to compete for jobs within the Federal
workforce. Petition for Review (PFR) File, Tab 1. The appellant argues that
individuals holding Mail Handler Assistant positions, who were allowed to
compete for full-time positions, should be considered outside the agency’s
workforce for VEOA purposes. Id. As discussed below, the appellant’s
arguments on review do not provide a basis for disturbing the initial decision.
¶5 The administrative judge correctly noted that, to establish Board
jurisdiction over a “right to compete” VEOA claim under 5 U.S.C.
§ 3330a(a)(1)(B), the appellant must: (1) show that he exhausted his remedy with
the Department of Labor (DOL) and (2) make nonfrivolous allegations that (i) he
is a veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue
took place on or after the December 10, 2004 enactment date of the Veterans
Benefits Improvement Act of 2004, and (iii) the agency denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its own
workforce in violation of 5 U.S.C. § 3304(f)(1). ID at 3; see Styslinger v.
Department of the Army, 105 M.S.P.R. 223, ¶ 31 (2007).
4
¶6 The administrative judge found that it was undisputed that the appellant is a
veteran within the meaning of the statute and that the action at issue took place
after 2004. ID at 3. The administrative judge found that it was unnecessary to
resolve the issue of whether the appellant had exhausted his remedies with DOL
because, even if he had, the record did not reflect that, for the position at issue,
the agency accepted applications from individuals outside its own workforce. ID
at 4.
¶7 We agree with the administrative judge’s finding that the agency did not
accept applications from individuals outside of its own workforce when it filled
the Full-time Regular Mail Handler positions. Because the agency restricted the
application process to internal candidates, the administrative judge correctly
found that the appellant failed to establish that the agency denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its
own workforce.
¶8 The appellant continues to argue that, for VEOA purposes, the Mail Handler
Assistant Position should be considered outside of the agency’s internal
workforce because those positions are not career positions within the Federal
workforce, and they do not receive the same rights and benefits of a Federal
employee. PFR File, Tab 1. While we have considered the appellant’s arguments
on review, we discern no reason to substitute our assessment of the record
evidence for that of the administrative judge. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105‑06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
Specifically, we agree with the administrative judge’s determination that, while
the Mail Handler Assistant positions have lesser contractual or other employment
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rights, it does not change the fact that the Mail Handler Assistants were a part of
the agency’s “regular” workforce when they competed for the positions. ID at 4.
¶9 To the extent the appellant also challenges the CBA’s provisions that
supposedly preclude him from being considered for the Full-time Regular Mail
Handler position, we agree with the administrative judge that VEOA does not
grant the Board the authority to address the appellant’s allegations that the agency
violated the CBA when it failed to consider him for a Full-time Regular Mail
Handler position. ID at 4; Ruffin v. Department of the Treasury, 89 M.S.P.R.
396, ¶ 11 (2001) (explaining that VEOA does not grant the Board authority to
consider violations of provisions unrelated to veterans’ preference appeals).
Accordingly, we conclude that the appellant has provided no basis upon which to
disturb 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 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
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
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title 5 of the U.S. 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 U.S. 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.