The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EFREN Z. ANGUIANO, DOCKET NUMBER
Appellant, CH-0752-18-0553-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 29, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Waite P. Stuhl , Esquire, St. Louis, Missouri, for the appellant.
James Gursky , Potomac, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision that
dismissed the appeal of his removal for lack of Board jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND this case to the Central Regional
Office to hold a jurisdictional hearing in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On August 13, 2018, the agency removed the appellant from the position of
EAS-23 International Mail Security Specialist for failing to maintain a condition
of employment due to his inability to hold a security clearance. Initial Appeal
File (IAF), Tab 1 at 6-7. At the time of his removal, the appellant, a
nonpreference eligible, had served in this position for nearly 5 years. IAF, Tab 1
at 1; Petition for Review (PFR) File, Tab 1 at 11.
The appellant filed a Board appeal contesting his removal and requested a
hearing. IAF, Tab 1 at 2. Due to the appellant’s employment at the U.S. Postal
Service, a question of whether the Board had jurisdiction over the appeal existed.
The administrative judge issued an order directing both parties to file argument
and evidence on the issue. IAF, Tab 3. In response, the appellant averred that he
held a supervisory and management position for at least 1 year continuously at
the time of his removal, resulting in Board jurisdiction over his appeal. IAF,
Tab 7 at 1-2. The agency objected by contending that the appellant did not raise a
nonfrivolous allegation evidencing Board jurisdiction. IAF, Tab 9 at 4-13. On
September 28, 2018, the administrative judge issued an initial decision dismissing
the appeal, holding that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction, meaning that he was not entitled to a jurisdictional hearing.
IAF, Tab 10, Initial Decision (ID) at 1-6. The appellant then filed a petition for
review, and the agency responded in opposition. PFR File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is not plenary; 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). A Postal Service
employee may file a Board appeal of an agency action taken under chapter 75,
such as a removal, only if he is covered by 39 U.S.C.§ 1005(a) or 5 U.S.C.
§ 7511(a)(1)(B). 5 U.S.C. § 7511(b)(8). Thus, to appeal a removal under
3
chapter 75, a Postal employee (1) must be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) must have completed 1 year of
current continuous service in the same or similar positions. 39 U.S.C.§ 1005(a)
(4)(A); 5 U.S.C. § 7511(a)(1)(B); McCandless v. Merit Systems Protection Board,
996 F.2d 1193, 1198-99 (Fed. Cir. 1993).
Before the administrative judge, the appellant, a nonpreference eligible,
claimed that he served in a supervisor and management position for at least 1 year
continuously at the time of his removal. IAF, Tab 7 at 1-2. For purposes of
determining whether a nonpreference eligible Postal Service employee is a
“supervisor” who may appeal an adverse action to the Board, the two particular
functions that are most often substantially determinative are (1) the authority to
discharge or discipline another employee, or effectively to recommend that
another employee be disciplined or discharged; and (2) the employee’s authority
to responsibly direct the actions of other employees. Bolton v. Merit Systems
Protection Board, 154 F.3d 1313, 1317-18 (Fed. Cir. 1998). The definition of
“manager” for these purposes is one who formulates and effectuates management
policies by expressing and making operative the decisions of their employer. Id.
at 1318.
Prior to the issuance of the initial decision, the appellant did not receive
sufficient information on what was required of him to establish an appealable
jurisdictional issue.
An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). An appellant bears the burden to
establish jurisdiction over his adverse action appeal by preponderant evidence.
Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007); 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Where an appellant sets forth a nonfrivolous allegation of
Board jurisdiction, he is entitled to a hearing on the jurisdictional question.
4
Lara v. Department of Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006); see
Burgess, 758 F.2d at 643-44. A nonfrivolous allegation is an allegation of fact
which, if proven, could establish a prima facie case of Board jurisdiction over the
appeal. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R.
§ 1201.4(s). An allegation generally will be considered nonfrivolous when, under
oath or penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s).
In this case, as the appellant argues in his petition for review, the
Jurisdiction Order issued by the administrative judge failed to provide him with
explicit information on his requirement to establish an appealable jurisdictional
issue. IAF, Tab 3; PFR File, Tab 1 at 5-9. Specifically, the order did not
mention the nonfrivolous allegation standard that the appellant had to meet to
attain a jurisdictional hearing. IAF, Tab 3; see Scott v. Department of Justice,
105 M.S.P.R. 482, ¶ 5 (2007) (noting that the jurisdictional notice provided to the
appellant was inadequate because it did not offer any explicit information about
the argument and evidence that the appellant in the case had to present in order to
nonfrivolously allege Board jurisdiction). Instead, the order focused exclusively
on how the appellant could establish by preponderant evidence his status as a
preference eligible, despite the fact that he previously indicated that he was not
preference eligible. IAF, Tab 1 at 1, Tab 3 at 2-3. There was no information
provided to the appellant on how to set forth sufficient argument and evidence to
raise a nonfrivolous allegation that he served in a supervisory or management
position at the time of his removal, which is where he grounded his argument in
Board jurisdiction. IAF, Tab 3, Tab 7 at 1. The Board has held that an appellant
cannot be expected to “fight a fog of generality” that is created by an insufficient
notice of what must be alleged in order to receive a jurisdictional hearing. Scott,
105 M.S.P.R. 482, ¶ 5.
5
Nevertheless, the failure of an administrative judge to provide an appellant
with the proper Burgess notice can be cured if an agency’s pleadings contain the
notice that was lacking or if the initial decision puts an appellant on notice of
what he must do to establish jurisdiction, thus affording him the opportunity to
meet the jurisdictional burden on review. Id., ¶ 6. In this case, notice of the
appropriate jurisdictional standard is piecemealed between the agency’s response
to the Jurisdiction Order and the initial decision. 2 See generally IAF, Tab 9
at 4-12; ID at 1-6. In his petition for review, the appellant proffered argument
and evidence to meet the nonfrivolous allegation of Board jurisdiction standard,
which we will now consider. PFR File, Tab 1 at 4-12.
The appellant set forth a nonfrivolous allegation of Board jurisdiction, entitling
him to a jurisdictional hearing on the appeal of his removal.
In his petition for review, the appellant submitted a sworn affidavit laying
out his claim that he served in a supervisory position at the time that he was
removed from the agency. 3 PFR File, Tab 1 at 11-12. Particularly, the appellant
stated that his supervisory responsibilities over seven employees consisted of
hiring, directing workload, disciplining, and conducting performance evaluations.
Id. These are the types of functions that fall under the purview of a “supervisor”
that the Board considers determinative when assessing jurisdiction over adverse
action appeals of Postal Service employees. Bolton, 154 F.3d at 1317-18. The
appellant’s rather specific claim regarding holding a supervisory position at the
time of his removal is made under the penalty of perjury, is plausible on its face,
and is material to the legal jurisdictional issue present in this appeal. If the
appellant’s contention in his sworn affidavit is proven, then he will be deemed a
2
The appellant did not have the opportunity to respond to the agency’s response to the
Jurisdiction Order prior to the issuance of the initial decision. IAF, Tab 3 at 3-4.
3
On review, the appellant advances the claim that he served in a supervisory position
and not in a management position. PFR File, Tab 1 at 11-12.
6
supervisor, and it would establish Board jurisdiction over the appeal of his
removal. 4
Therefore, after receiving explicit information on what was required of him
to establish an appealable jurisdictional issue, the appellant set forth a
nonfrivolous allegation of Board jurisdiction. See Smirne v. Department of the
Army, 115 M.S.P.R. 51, ¶ 11 (2010) (holding that the appellant’s sworn statement
was sufficient to constitute a nonfrivolous allegation of Board jurisdiction). The
appellant is now entitled to a jurisdictional hearing on the matter. See Walker v.
Department of the Army, 119 M.S.P.R. 391, ¶ 17 (2013) (remanding for a
jurisdictional hearing as the appellant made a nonfrivolous allegation of Board
jurisdiction).
ORDER
For the reasons discussed above, we remand this case to the Central
Regional Office to hold a jurisdictional hearing in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
It remains undisputed that the appellant is a nonpreference eligible that served in his
position for at least 1 year continuously at the time of his removal. IAF, Tab 1 at 1,
Tab 7 at 2, Tab 9 at 5.