NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3277
ERIC N. WILSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Eric N. Wilson, of Norwalk, Connecticut, pro se.
Thomas N. Auble, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3277
ERIC N. WILSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0752070066-I-1
__________________________
DECIDED: February 13, 2008
__________________________
Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
PER CURIAM.
Mr. Eric N. Wilson, appearing pro se, petitions for review of the decision of the Merit
Systems Protection Board, dismissing his appeal for lack of jurisdiction, on the ground that
he is not in the class of postal employees entitled to appeal to the Board. MSPB Docket
No. PH-0752-07-0066-I-1. We affirm the dismissal.
BACKGROUND
Mr. Wilson was employed by the United States Postal Service (USPS) as a custodial
laborer for four years before resigning in February 2006. In October 2006 he filed an
appeal with the Board, complaining that his resignation was involuntary because he
received misinformation from labor union officials. The administrative judge (AJ) issued an
Order informing the appellant of his burden to prove that his appeal was timely filed and
that his resignation was involuntary. The USPS moved to dismiss on the grounds that the
resignation was voluntary and therefore not appealable, and that the appeal was untimely.
In a second motion, the USPS stated that Mr. Wilson is not a preference eligible employee
as defined in 5 U.S.C. '2108 et seq., and therefore cannot appeal to the Board.
Mr. Wilson was a veteran, and had so indicated on his appeal form. In response to
the USPS motions, the AJ held a telephonic status conference; the AJ states that Mr.
Wilson was advised of his burden of establishing the Board's jurisdiction. Mr. Wilson then
filed a further statement describing the circumstances leading to his resignation; he
provided some medical information and a copy of a grievance filed by his union, and
attributed his resignation to misinformation given to him at a meeting with union labor
relations officials. He did not address the question of whether he had appeal rights based
on his status as a veteran.
The AJ found that although Mr. Wilson stated on his appeal form that he has
"veterans preference," he does not meet the statutory requirements for appeal to the Board
because he did not serve on active military duty during the periods set forth in 5 U.S.C.
'2108, nor did he fall under any of the other provisions granting Board appeal rights to
Postal Service employees. The AJ ruled that the Board has no jurisdiction to hear this
2007-3277 2
appeal, and did not reach the merits. The full Board denied review, and this decision
became final on May 2, 2007. This appeal followed.
DISCUSSION
Decisions of the Board are reviewed to determine whether they are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without following procedures required by law, rule, or regulation; or unsupported by
substantial evidence. 5 U.S.C. '7703(c); see Campion v. MSPB, 326 F.3d 1210, 1212
(Fed. Cir. 2003). The Board's rulings as to its jurisdiction receive plenary review. Id.
A USPS employee may appeal to the Board if the employee has completed one year
of continuous service and is a preference eligible veteran as set forth in 5 U.S.C. '2108, or
is a supervisor, manager, or an employee engaged in personnel work in other than a purely
non-confidential capacity. 39 U.S.C. '1005(a); 5 U.S.C. '7511(a)(1)(B); 5 U.S.C.
'7511(b)(8). 5 U.S.C. '2108 (3)(A)-(D) limits veterans' rights of appeal to the Board to
veterans who served on active military duty before 1976, between 1990 and 1992, and
after 2001, to veterans who served during a period of award of campaign badges, or are
disabled or the unmarried widow or widower of a veteran. See 5 U.S.C. '2108(2),(3). It is
not disputed that Mr. Wilson's active military duty began in 1979 and ended in 1987, and
the AJ found that Mr. Wilson offered no evidence that he met any of the other statutory
criteria.
On this appeal, Mr. Wilson does not contradict any of these findings. He does not
mention the issue of qualifying his military service in his informal brief or in his
memorandum in lieu of oral argument, although the USPS discussed this issue in its
responding brief. While the AJ's decision is unclear as to whether, during the telephonic
2007-3277 3
status conference, Mr. Wilson was adequately advised of and understood his burden to
establish active military duty during the time periods defined in 5 U.S.C. '2108(3)(A)-(D), it
appears to be beyond dispute that his military service was not during any qualifying period.
On this basis, the Board's decision is affirmed.
No costs.
2007-3277 4