Opinion

Cassandra Clark v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Feb 23, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CASSANDRA D. CLARK, DOCKET NUMBER

Appellant, CH-0752-21-0382-I-1

UNITED STATES POSTAL SERVICE, DATE: February 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Albert Lum, Brooklyn, New York, for the appellant.

Brandon L. Truman, Esquire, Charlotte, North Carolina, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed her constructive suspension appeal as moot after the agency rescinded

the action and restored her to status quo ante. On petition for review, the

appellant argues that the agency failed to pay her for 1 week out of 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

approximately 2-month period during which she had been placed in a leave

without pay (LWOP) status. 2 Petition for Review (PFR) File, Tab 1 at 4. The

agency has not responded to the appellant’s petition for review. Generally, we

grant petitions such as this one only in the following circumstances: 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 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. 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 To the extent that the appellant alleges that the administrative judge erred in

finding that the agency rescinded its action and restored her to status quo ante ,

she has provided no basis for such a claim. Indeed, according to the

administrative judge’s order summarizing a status conference, the parties

confirmed that the appellant’s leave and pay had been fully restored to status quo

ante and that the appeal was moot. Initial Appeal File, Tab 8. The appellant,

who was represented, did not object to the order, including the administrative

judge’s stated intent to dismiss the appeal as moot, despite being afforded an

The appellant attached a copy of a timesheet to her petition for review, which shows

that the agency processed an adjustment to convert her LWOP to paid leave for the

week in question but does not address whether she received payment for that time.

Petition for Review File, Tab 1 at 6-7.

opportunity to do so. Id. However, to resolve any doubts regarding whether the

appellant had been paid for the disputed week (August 8–14, 2021), on July 7,

2022, the Board issued a show cause order. PFR File, Tab 3. Specifically, the

agency was ordered to submit evidence that the appellant was paid for the

disputed time period within 20 days. Id. The appellant was ordered to file a

response within 10 days of the agency’s submission. Id. at 2. On July 27, 2022,

the agency responded and provided argument and evidence showing that the

appellant had received the 1 week of pay. PFR File, Tab 4. On August 3, 2022,

the appellant responded that the pay issue had been “fully rectified” and that there

were “no further issues to be resolved in this appeal.” PFR File, Tab 5. Thus,

based on the statements of the parties below and their responses to the show cause

order, we find that the administrative judge properly dismissed the appeal as

moot.

¶3 Although the appellant confirmed to the Office of the Clerk of the Board

that her submission was intended as a petition for review of the initial decision, 3

PFR File, Tab 2 at 1, to the extent that she intended to file a petition for

enforcement, there is no basis for enforcement as there is no Board order with

which the agency was directed to comply, Hunter v. Department of the Air Force,

83 M.S.P.R. 7, ¶ 11 (1999), or a settlement agreement that has been entered into

the record for enforcement purposes, Sellman v. U.S. Postal Service, 63 M.S.P.R.

145, 151 (1994).

The appellant titled her submission on review as a petition for enforcement and

requested that the agency pay her for the contested week; in a telephone conversation

with the Office of the Clerk of the Board, she confirmed that the submission was

intended as a petition for review of the initial decision. PFR File, Tab 1 at 4, Tab 2

at 1.

NOTICE OF APPEAL RIGHTS 4

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 rights, 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

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 revi ew 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:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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. 5 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).

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