Opinion

Ronald Jordan v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD M. JORDAN, JR., DOCKET NUMBER

Appellant, CB-7121-22-0005-V-1

UNITED STATES POSTAL SERVICE, DATE: April 15, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald M. Jordan, Jr., Joliet, Illinois, pro se.

Bobbi K. Mihal, Esquire, St. Louis, Missouri, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant requests review of

an arbitrator’s decision that denied his grievance challenging his removal for

failure to maintain a regular schedule. For the reasons set forth below,

we DISMISS the appellant’s request for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The appellant was a Postal Support Employee Sales and Distribution

Associate who was removed from the Federal service effective September 11,

2018, for failure to maintain a regular schedule. Request for Review (RFR) File,

Tab 5 at 22-24. The appellant filed a grievance challenging his removal, and

after holding a hearing, the arbitrator issued a decision on November 12, 2021,

denying the grievance and finding that the agency had just cause to remove him.

RFR File, Tab 1 at 6.

¶3 The appellant submitted an appeal form to the Board’s Central Regional

Office, attaching a copy of the arbitrator’s decision, which was forwarded to the

Office of the Clerk of the Board. RFR File, Tab 1. The Office of the Clerk then

issued an acknowledgment order, setting forth the elements of a request for

review, explaining the jurisdictional requirements of a request for review, and

affording the appellant an opportunity to respond. RFR File, Tab 2 at 1-3. The

appellant did not respond to the order; however, the agency filed a response in

opposition to the appellant’s request for review . RFR File, Tab 5 at 4-12.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The Board typically has jurisdiction to review an arbitration decision under

5 U.S.C. § 7121(d) when the subject matter of the grievance is one over which the

Board has jurisdiction, the appellant has alleged discrimination as stated in

5 U.S.C. § 2302(b)(1) in connection with the underlying action, and a final

decision has been issued. Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 4

(2008). However, a Postal Service employee does not have the right of Board

review of an arbitration decision because 5 U.S.C. § 7121 does not apply to the

Postal Service. Id. We therefore dismiss the appellant’s request for review of the

arbitration decision for lack of jurisdiction. Id.

¶5 However, we acknowledge that the Board may have jurisdiction over the

appellant’s removal because a Postal Service employee can file a grievance and a

de novo Board appeal from the same action. Id., ¶ 5. Nevertheless, it appears

that the appellant was seeking to request the Board’s review of the arbitrator’s

decision, as he attached a copy of the arbitrator’s decision to his submission

without further explanation. RFR File, Tab 1. Furthermore, there is no evidence

in the record that indicates that the appellant was attempting to file a Board

appeal of his removal. For example, the appellant did not object to the Central

Regional Office forwarding his submission to the Clerk of the Board or the

Clerk’s Acknowledgment Order treating his submission as a request for review of

the arbitrator’s decision. RFR File, Tabs 1-2. In fact, a footnote to the

Acknowledgment Order indicates that the Clerk of the Board confirmed through

an email exchange the appellant’s intent that his submission be processed as a

request for review of the arbitrator’s decision. Id., Tab 2 at 1 n*. Accordingly,

because it does not appear that the appellant wished to file a Board appeal of his

removal, we do not forward his submission to the regional office. However, to

the extent that the appellant wishes to file a Board appeal of his removal, he may

do so with the Central Regional Office. 2

NOTICE OF APPEAL RIGHTS

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal ri ghts, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

We make no findings on jurisdiction or timeliness regarding an appeal of the

appellant’s removal.

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U .S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the