Opinion

Craig Singletary v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jun 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CRAIG M. SINGLETARY, DOCKET NUMBER

Appellant, DC-0752-16-0880-I-1

UNITED STATES POSTAL SERVICE, DATE: June 27, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Humphrey S. Cummings, Esquire, Charlotte, North Carolina, for the

appellant.

Greg Allan Ribreau, Esquire, Charlotte, North Carolina, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his restoration appeal for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED by this Final Order

to apply the nonfrivolous allegation standard for establishing jurisdiction set forth

in the Board’s revised regulations, we AFFIRM the initial decision.

¶2 On September 15, 2016, the appellant filed the instant appeal alleging that

the agency denied him restoration from November 3, 2015, to January 12, 2016,

and discriminated against him based upon his disability, harassed him, and

retaliated against him for his previous equal employment opportunity (EEO)

activity and for filing a workers’ compensation claim. Initial Appeal File (IAF),

Tab 1. He requested a hearing. Id. The agency moved to dismiss the appeal for

lack of jurisdiction because the appellant had not alleged tha t his absence was due

to a compensable injury. IAF, Tab 5. Subsequently, the administrative judge

issued an order informing the parties of the requirements for establishing

jurisdiction and ordering the appellant to show cause why the appeal should not

be dismissed for lack of jurisdiction. IAF, Tab 6. The appellant did not respond

to the order. Accordingly, without holding the appellant’s requested hearing, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction. IAF, Tab 7, Initial Decision (ID).

¶3 The appellant has filed a petition for review, and the agency has responded

in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 3. 2

¶4 On review, the appellant challenges the initial decision and asks the Board

to grant him a hearing and adjudicate his claims of discrimination based upon

disability, failure to accommodate his disability, and retaliation for his prior EEO

and workers’ compensation activity. PFR File, Tab 1 at 3-8. 3 However, as the

administrative judge correctly stated, the Board’s jurisdiction is limited to those

matters over which it has been given jurisdiction by law, rule , or regulation. ID

at 2; see Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.

1985). Under the Board’s revised regulations, to establish jurisdiction over a

denial of restoration claim as a partially recovered employee for any appeal filed

on or after March 30, 2015, an appellant is required to make nonfr ivolous

allegations of the following: (1) he was absent from his position due to a

compensable injury; (2) he recovered sufficiently to return to duty on a part-time

basis, or to return to work in a position with less demanding physical

requirements than those previously required of him; (3) the agency denied his

request for restoration; and (4) the denial was arbitrary and c apricious because of

the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d). See

The agency challenges the timeliness of the petition for review because the initial

decision became final on December 7, 2016, and the Clerk of the Board did not receive

the petition until December 12, 2016. PFR File, Tab 3 at 5-6. However, the appellant

mailed the petition for review when it was due, on December 7, 2016, PFR File, Tab 1,

and thus it was timely filed, 5 C.F.R. §§ 1201.4(l), 1201.114(e). Further, to the extent

that the agency alleges that the appellant should have filed his petition via e-Appeal on

December 7, 2016, such filing is not mandatory. 5 C.F.R. § 1201.14(f).

With his petition, the appellant attached a November 2015 letter requesting EEO

counseling, a March 2016 EEO specialist’s inquiry report, and an EEO dispute

resolution specialist’s March 2016 report. We do not consider this evidence because it

is not new. PFR File, Tab 1; see 5 C.F.R. § 1201.115(d). He also attached a

December 7, 2016 declaration from his attorney. We do not consider this evidence

because it is not material to the issue of jurisdiction. PFR File, Tab 1; see 5 C.F.R.

§ 1201.115(d).

Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 11 (2016); 5 C.F.R.

§ 1201.57(b). 4

¶5 We agree with the administrative judge that, although the appellant

originally had a compensable injury, he did not allege that his absence between

November 3, 2015, and January 12, 2016, was due to that injury. ID at 3; IAF,

Tab 1, Tab 5 at 10-11. Instead, the appellant submitted evidence to the agency

that his absence was due to other medical conditions. IAF, Tab 5 at 28-33, 41-42.

Thus, the record reflects that the appellant was not absent due to a compensable

injury, and we lack jurisdiction over his claim.

¶6 Accordingly, because we lack jurisdiction over the appeal, we cannot

address the appellant’s claims of discrimination based upon disability, failure to

accommodate his disability, and retaliation for his EEO and workers’

compensation activity. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2

(1980) (finding that prohibited personnel practices are not an independent source

of Board jurisdiction and that, absent an otherwise appealable action, the Board

lacks jurisdiction to consider an appellant’s affirmative defenses) , aff’d, 681 F.2d

867, 871-73 (D.C. Cir. 1982).

The administrative judge informed the parties that the appellant must establish

jurisdiction by preponderant evidence and applied this standard in the initial decision.

IAF, Tab 6; ID at 3. However, because the appellant filed the instant appeal on or after

March 30, 2015, he only is required to make a nonfrivolous allegation of jurisdiction.

See Kingsley, 123 M.S.P.R. 365, ¶ 10. The difference in standard does not affect the

appellant’s substantive rights because the newer standard is more lenient, and he could

not establish jurisdiction under either standard. See Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision); compare 5 C.F.R. § 1201.4(q), with 5 C.F.R. § 1201.4(s).

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 a pplicable 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 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).

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.

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. 420 (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 resp ective

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. 6 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