NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELIZABETH RUTH DABNEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3149
______________________
Petition for review of the Merit Systems Protection
Board in No. AT0752120448-I-1.
______________________
Decided: June 5, 2014
______________________
ELIZABETH RUTH DABNEY, of Memphis, Tennessee, pro
se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2 DABNEY v. MSPB
PER CURIAM.
Elizabeth Ruth Dabney appeals the decision of the
Merit Systems Protection Board dismissing her appeal for
lack of jurisdiction. Because the Board correctly found
that Ms. Dabney is not a preference-eligible veteran, the
dismissal is affirmed.
DISCUSSION
Ms. Dabney was employed as a Rural Carrier Associ-
ate with the U.S. Postal Service from 2006 to 2012, when
she was removed for violating the Postal Service’s Stand-
ard of Conduct, based on the following event: On Satur-
day October 22, 2011 Ms. Dabney was delivering a
package when she exited her vehicle without setting the
parking brake. The vehicle rolled backwards and struck a
second vehicle parked nearby. The incident resulted in
damage to both vehicles.
On October 27, 2011 the Postal Service issued a notice
of proposed removal, citing her accident as the primary
cause for removal. Ms. Dabney appealed to the Board on
April 12, 2012. The Postal Service moved to dismiss Ms.
Dabney’s claim on two bases: (1) she was not an “employ-
ee” with appeal rights within the meaning of 5 U.S.C.
§7511(a)(1)(B) because she was not a preference eligible
veteran, and (2) she lacked an appealable claim under 5
U.S.C. §7512 because her removal had not been effected
at the time of her appeal. 1
1 The Postal Service finalized Ms. Dabney’s removal
effective May 14, 2012. She independently appealed that
action to the Board. The Board dismissed the second
appeal for the same reason cited in this case, i.e., lack of
preference eligibility. Dabney v. U.S. Postal Serv.,
M.S.P.B. Docket No. AT-0752-13-0320-I-1 (May 14, 2013).
DABNEY v. MSPB 3
By statute, a Postal Service employee who seeks to
appeal a removal decision to the Board must be a prefer-
ence eligible veteran, a management or supervisory
employee, or an employee engaged in certain personnel
work. 5 U.S.C. §7511(a)(1)(B) (2006); 39 U.S.C. §1005(a)
(2011). The definition of preference eligibility is limited to
those veterans who:
(A) served on active duty in the armed forces dur-
ing a war, in a campaign or expedition for which a
campaign badge has been authorized, or during
the period beginning April 28, 1952, and ending
July 1, 1955; [or]
(B) served on active duty as defined by section 101
(21) of title 38 at any time in the armed forces for
a period of more than 180 consecutive days any
part of which occurred after January 31, 1955,
and before October 15, 1976, not including service
under section 12103(d) of title 10 pursuant to an
enlistment in the Army National Guard or the Air
National Guard or as a Reserve for service in the
Army Reserve, Navy Reserve, Air Force Reserve,
Marine Corps Reserve, or Coast Guard Reserve;
[or]
(C) served on active duty as defined by section 101
(21) of title 38 in the armed forces during the pe-
riod beginning on August 2, 1990, and ending on
January 2, 1992; [or]
(D) served on active duty as defined by section 101
(21) of title 38 at any time in the armed forces for
a period of more than 180 consecutive days any
part of which occurred during the period begin-
ning on September 11, 2001, and ending on the
date prescribed by Presidential proclamation or by
law as the last date of Operation Iraqi Freedom;
5 U.S.C. §§2108(1), (3) (2011).
4 DABNEY v. MSPB
Ms. Dabney disputes the finding that she is not a
preference eligible veteran. She submitted her Form
DD214, which showed that she served in active duty in
the Army from November 1, 1978 to October 10, 1980.
She also provided a Notice of Personnel Action that listed
her veteran’s preference as “2”.
The Board’s Administrative Judge ruled that Ms.
Dabney did not qualify as a preference eligible veteran,
for she did not satisfy the criteria set forth in 5 U.S.C.
§2108. Ms. Dabney responded that she served in and was
honorably discharged from the United States Armed
Forces. She further stated that jurisdiction should be
found because she was injured while working for the
Postal Service prior to this vehicular accident, and was
returned to work under a limited-duty job offer.
The AJ held that Ms. Dabney’s Form DD214 did not
establish preference eligibility for Postal Service appeal
purposes because it did not show that Ms. Dabney ever
received a campaign badge or served in a campaign or
expedition for which a campaign badge has been author-
ized. Ms. Dabney’s Army service of 1978–80 does not
correspond to any of the time periods specified in Section
2108, and her Form DD214 does not state that Ms. Dab-
ney received a campaign badge or served in a campaign
for which a campaign badge has been authorized. Alt-
hough Ms. Dabney received Sharpshooter Badges for the
M16 rifle and the hand grenade, those badges do not
qualify as campaign badges as designated by the Office of
Personnel Management’s Veterans Guide. See
http://www.opm.gov/policy-data-oversight/veterans-
services/vet-guide#9.
Ms. Dabney relies on the Notice of Personnel Action
that lists her veterans preference as “2” to support her
claim of preference eligibility. However, Ms. Dabney does
not contend that her military record Form DD214 inaccu-
rately portrays her service record. The military record
DABNEY v. MSPB 5
must be afforded controlling weight. See Perez v. Merit
Sys. Prot. Bd., 85 F.3d 591, 594 (Fed. Cir. 1996); Gordon-
Cureton v. U.S. Postal Serv., 107 M.S.P.R. 79, 85–86
(2007); Sellers v. U.S. Postal Serv., 98 M.S.P.R. 44, 49
(2004).
The AJ deemed Ms. Dabney’s reference to her injury
to be a new claim for a compensable injury, which he
severed and docketed for separate adjudication. The full
Board affirmed the AJ. Ms. Dabney argues that the
Board erred because it did not consider her limited duty
status in its decision, and also that she raised allegations
of discrimination which were not addressed by the Board.
The government responds that Ms. Dabney’s limited duty
status is not relevant to the present appeal as it was
docketed as a separate appeal and was not addressed by
the Board.
In her supplemental briefing, Ms. Dabney argues that
the Board should have considered her allegations of
discrimination. Assuming Ms. Dabney raised a claim for
discrimination before the Board, it could not review those
allegations in the absence of an otherwise appealable
action. Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245–46
(Fed. Cir. 1991) (en banc).
The Board’s dismissal of Ms. Dabney’s appeal for lack
of jurisdiction must be affirmed. 2
2 On May 15, 2014 Ms. Dabney filed a Motion to
Compel Agency to File Response for Hearing Held Janu-
ary 10, 2014. Ms. Dabney’s case was received without
oral hearing, and was decided by a panel of judges based
on the written submissions of the parties. See Notice of
Calendaring – Notice of Submission without Oral Argu-
ment, mailed to Ms. Dabney on Nov. 21, 2013 (“Because
the court has not allotted time for oral argument, nothing
concerning this case will take place in open court even
6 DABNEY v. MSPB
AFFIRMED
COSTS
Each party shall bear its own costs.
though the appeal appears on the court’s calendar for that
day.”). No further response from the agency was appro-
priate. Accordingly, the motion is denied.