NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3232
ARDRENA A. BURNETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Ardrena A. Burnett, of Sugar Land, Texas, pro se.
Stephanie M. Conley, Attorney, Office of the General Counsel, United States
Merit Systems Protection Board, of Washington, DC, for respondent. With her on the
brief were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General
Counsel, and Calvin M. Morrow, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3232
ARDRENA A. BURNETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: October 22, 2007
__________________________
Before NEWMAN, RADER, and DYK, Circuit Judges.
PER CURIAM.
Petitioner Ardrena A. Burnett, proceeding pro se, petitions for review of the decision
of the Merit Systems Protection Board dismissing her appeal for lack of jurisdiction. 1 We
affirm.
1 Burnett v. U.S. Postal Serv., MSPB Docket No. DA3443060569-I-1 (April 6,
2007).
BACKGROUND
Ms. Burnett worked as a Mail Handler at the United States Postal Service's General
Mail Facility in Houston, Texas. The Postal Service removed her from employment on
August 26, 2005, on the ground that she submitted a false workers' compensation claim.
On May 3, 2006 Ms. Burnett filed an appeal with the Merit Systems Protection Board
alleging that the agency wrongfully removed her, violated her restoration rights, and denied
her a within-grade increase.
Before the Board Ms. Burnett moved to add a claim that her removal violated the
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38
U.S.C. '4301 et seq. USERRA prohibits discriminatory treatment in employment because
of an employee's military service and provides for appeal to the Board. The administrative
judge directed that the USERRA claim be docketed as a separate appeal.
The administrative judge then issued an Order to Show Cause in the separate
appeal, stating that Ms. Burnett's file contained no evidence of military service as required
to bring an action under USERRA, and directing her to provide evidence "including a DD-
214 or other documentation that might establish her service, if any, in the military." Ms.
Burnett's response did not include any evidence of military service and did not address the
issue. The Postal Service submitted documents from Ms. Burnett's personnel records as
evidence that she lacked prior military service and had no pending obligation to perform
military service. The administrative judge dismissed the appeal for lack of jurisdiction, and
the full Board denied review. This appeal is from that judgment.
2007-3232 2
DISCUSSION
We review the decision of the Board to determine whether it was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation; or unsupported by substantial
evidence. See 5 U.S.C. '7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986). Whether the Board has jurisdiction to receive an appeal is a question of
law, and receives plenary review. Hayes v. United States Postal Serv., 390 F.3d 1373,
1376 (Fed. Cir. 2004).
Ms. Burnett argues that USERRA applies not only to employees who performed
military service but also to federal employees who suffered an injury or disability "in the line
of duty," the "duty" being any federal employment. She states that 5 C.F.R. Part 353,
which relates to appeal rights, applies equally to USERRA and to 5 U.S.C. '8151 appeals,
and thus that all federal employees are included. However, Ms. Burnett misconstrues the
statute and regulation, for although 5 C.F.R. '353.101 contains regulations applying to
appeals under either USERRA or 5 U.S.C. '8151, USERRA appeals are available only to
employees who meet the requirement of military service.
Ms. Burnett does not allege that she performed "military duty" or had an obligation to
do so. She has not contradicted the Postal Service's documentation of her lack of military
service. The Board's conclusion that it did not have jurisdiction by way of USERRA is
correct. The Board's dismissal of the appeal is affirmed.
No costs.
2007-3232 3