David Shu v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID SHU, DOCKET NUMBER

Appellant, SF-0353-15-0515-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: December 2, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Shu, Santa Maria, California, pro se.

Jeremy M. Watson, San Francisco, 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 his challenge to the agency’s removal action for lack of jurisdiction .

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of mat erial fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

judge’s rulings during either the course of the appeal or the initial dec ision 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 n ot

available when the record closed. 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 initially worked for the agency as a Part -Time Flexible Letter

Carrier, beginning in March 2002. See Shu v. U.S. Postal Service, MSPB Docket

No. SF-0353-11-0065-B-1, Initial Appeal File (0065 IAF), Tab 41, Initial

Decision (0065 ID) at 2. He suffered a compensable injury in September 2003,

after which he was absent from work, and the agency removed him for irregular

attendance/absence without leave in December 2003. Id. at 2, 7. He requested

reinstatement in March 2009 and returned to duty as a Full ‑Time Letter Carrier in

November 2010. Id. at 6-7.

¶3 In a prior Board appeal, the appellant challenged the agency’s decision to

place him on emergency leave without pay, effective September 27, 2013, for

failing to report a motor vehicle accident that occurred a week earlier. Shu v.

U.S. Postal Service, MSPB Docket No. SF-0752-14-0011-I-1, Initial Appeal File

(0011 IAF), Tab 1. Among other things, the appellant suggested that the action

was related to his 2010 restoration. E.g., id. at 5. The administrative judge

dismissed that appeal for lack of jurisdiction. 0011 IAF, Tab 32, Initial Decision

(0011 ID). The administrative judge found that, to the extent the case could be

construed as a chapter 75 appeal of an indefinite suspension, the appellant had

failed to nonfrivolously allege that he had cha pter 75 Board appeal rights. Id.

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at 6. He also found that, to the extent the appeal could be construed as a

restoration claim, the appellant had failed to nonfrivolously allege that he was

denied restoration. Id. at 8. The Board affirmed that decision on review. Shu v.

U.S. Postal Service, MSPB Docket No. SF-0752-14-0011-I-1, Petition for Review

(0011 PFR) File, Tab 6, Final Order (0011 FO) (Oct. 23, 2014).

¶4 In this case, the appellant challenged the agency’s November 2013 decision

to remove him for unacceptable conduct and failure to report a motor vehicle

accident. See Shu v. U.S. Postal Service, MSPB Docket No. SF‑0353‑15‑

0515-I-1, Initial Appeal File (0515 IAF), Tab 1 at 4-11, Tab 10 at 54-68. He

again suggested that the action was related to his 2010 restoration. E.g., 0515

IAF, Tab 1 at 4-11. The administrative judge similarly dismissed this appeal for

lack of jurisdiction. 2 0515 IAF, Tab 26, Initial Decision (0515 ID). The

appellant has filed a petition for review. Shu v. U.S. Postal Service, MSPB

Docket No. SF-0353-15-0515-I-1, Petition for Review (0515 PFR) File, Tab 6.

The agency has filed a response and the appellant has replied. 0515 PFR File,

Tabs 8-9.

The administrative judge correctly found that the Board lacks jurisdiction over

this appeal as an adverse action appeal.

¶5 As discussed in the initial decision and in the dismissal of the appellant’s

indefinite suspension appeal, the Board’s jurisdiction is not plenary. 0515 ID

at 6-7; 0011 FO, ¶ 8. 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). The appellant must prove by

preponderant evidence that the Board has jurisdiction over his appeal. 5 C.F.R.

§ 1201.56(a)(2)(i). For a U.S. Postal Service employee to appeal his removal or

any other adverse action under 5 U.S.C. chapter 75, he must: (1) be a preference

eligible, a management or supervisory employee, or an employee enga ged in

2

The appellant did not request a hearing. 0515 IAF, Tab 1 at 2.

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personnel work in other than a purely nonconfidential clerical capacity; and

(2) have completed 1 year of current continuous service in the same or similar

positions. See 39 U.S.C. § 1005(a); 5 U.S.C. § 7511(a)(1)(B)(ii); Clark v. U.S.

Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012).

¶6 In this case, it is undisputed that the appellant is not a preference eligible,

supervisor, or manager, nor does he engage in personnel work in other than a

purely nonconfidential clerical capacity. Therefore, the appellant does not have

the right to challenge his removal before the Board as an adverse action appeal

under chapter 75.

The administrative judge correctly found that the Board lacks jurisdiction over

this matter as a restoration claim.

¶7 Under the authority of 5 U.S.C. § 8151(b), the Office of Personnel

Management issued regulations governing the restoration rights of employees

after recovery from a compensable injury. See 5 C.F.R. § 353.301. The Board’s

jurisdiction in restoration cases is set forth at 5 C.F.R. § 353.304, which provides

individuals the right to appeal to the Board an agency’s failure to restore,

improper restoration, or failure to return an employee following a leave of

absence.

¶8 In addressing whether the Board has jurisdiction over this appeal as a

restoration claim, the administrative judge noted that there is nothing in the

record to indicate that the appellant was absent from duty or suffered a

compensable injury following his return to duty on November 6, 2010. 0515 ID

at 8-9 (referencing 0515 IAF, Tabs 1, 10). He further found that the agency’s

removal action was based on an unreported motor vehicle accident in

September 2013, a matter substantially unrelated to any compensable injury. Id.

at 9-10. Therefore, the administrative judge concluded that the appellant failed to

nonfrivolously allege that the Board has jurisdiction over this appeal based on

restoration rights. Id.; see 5 C.F.R. § 353.108 (providing that “separation for

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cause that is substantially unrelated to [a compensable injury] negates restoration

rights”).

¶9 On review, the appellant reiterates his claim that the 2013 removal action

was part of an ongoing effort to circumvent his 2003 compensable injury

and 2010 restoration. 0515 PFR File, Tab 6 at 7-9. This argument is essentially a

mere disagreement with the administrative judge’s finding that the Board does not

have jurisdiction over this appeal based on the appellant’s restoration rights, and

it provides no basis for disturbing the initial decision. See Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987)

(recognizing that a petitioner’s mere disagreement with issues already raised and

properly resolved by the administrative judge below does not establish a basis for

review).

The appellant’s remaining arguments are unavailing in this appeal.

¶10 The appellant’s petition for review contains a number of other arguments

that are unavailing. 0515 PFR File, Tab 6 at 9-33. For example, he asserts that

the administrative judge committed errors relating to prior restoration appeals.

Id. at 27-28. However, he failed to articulate how these purported errors relate to

his jurisdictional burden in the instant appeal. The appellant also alleges that the

agency failed to provide a complete appeal file and refused to respond to his

discovery requests. Id. at 29. However, it appears that the appellant’s requests

sought information concerning only the merits of his removal. 0515 IAF, Tab 18

at 12-20. He has not shown that the agency or administrative judge improperly

denied him materials relevant to his jurisdictional burden of proof. See generally

Russo v. Department of the Navy, 85 M.S.P.R. 12, ¶ 8 (1999) (recognizing that an

appellant is entitled to request the discovery of relevant m aterials to assist him in

meeting the burden of establishing jurisdiction); McGrath v. Department of the

Army, 83 M.S.P.R. 48, ¶ 7 (1999) (recognizing that relevant information includes

information that appears reasonably calculated to lead to the discovery of

admissible evidence). The appellant next argues that the agency denied him due

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process and fabricated evidence to frame him. E.g., 0515 PFR File, Tab 6

at 9-27. He further asserts that he was provided poor representation in prior

arbitration proceedings and the agency should have chosen a lesser penalty for his

alleged misconduct. Id. at 31-32. However, in the absence of Board jurisdiction,

we are unable to address such claims. See Schmittling v. Department of the Army,

219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that a decision on the merits would

be a nullity in the absence of Board jurisdiction); Sapla v. Department of the

Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that an appellant’s arguments on

review regarding the merits of an agency action were not relevant to whether the

Board had jurisdiction over an appeal).

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 cour t

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 and other sections of the United States

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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 provide d by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.