UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BERNICE E. MCCLAIN, DOCKET NUMBER
Appellant, AT-0752-13-0974-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 10, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alinda Favors, Riverdale, Georgia, for the appellant.
Randle Smith, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement and restoration claims for lack of Board
jurisdiction. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a Mail Processing Clerk, suffered an on-the-job injury in
1996. See Initial Appeal File (IAF), Tab 2 at 18, Tab 6 at 7. She eventually
separated from the agency in 2003, IAF, Tab 6 at 7, after several attempts at
modified duty, e.g., IAF, Tab 2 at 21, 29, and years of leave, id. at 2. The
appellant applied for, and was granted, disability retirement benefits. See Bernice
McClain v. Office of Personnel Management, MSPB Docket No. AT-844E-03-
0097-I-1, Initial Decision (Feb. 21, 2003) (Board decision reversing the Office of
Personnel Management’s denial of benefits). Approximately 10 years later, she
filed the appeal currently before us, alleging that she was “forced to retire
normally and denied [workers’ compensation].” IAF, Tab 1 at 2.
¶3 The administrative judge construed the appeal as one of involuntary
retirement. IAF, Tab 4 at 1. She then also questioned whether the appellant was
raising a restoration claim. IAF, Tab 9 at 1. Accordingly, the administrative
judge ordered the appellant to meet her jurisdictional burden for either. IAF, Tab
4 at 2-3 (jurisdictional order for claim of involuntary retirement), Tab 9 at 1-3
(jurisdictional order for restoration claim), Tab 14 at 1-3 (second jurisdictional
order for restoration claim, warning that the appellant had not yet presented
3
evidence that she requested restoration). Both parties responded. IAF, Tabs 6-8,
10-12, 18.
¶4 Without holding the requested hearing, IAF, Tab 1 at 1, the administrative
judge dismissed the appeal for lack of jurisdiction, IAF, Tab 19, Initial Decision
(ID) at 1. The appellant has filed a petition for review. 2 Petition for Review
(PFR) File, Tabs 1-2. The agency has not filed a response.
The appellant failed to present a nonfrivolous allegation that she was subjected to
an involuntary retirement within the Board’s jurisdiction.
¶5 In her petition, the appellant again asserts that she was subjected to a
“forced removal.” PFR File, Tab 1 at 1. However, we agree with the
administrative judge’s conclusion that the appellant failed to meet her
jurisdictional burden for this claim or to present nonfrivolous allegations
warranting a jurisdictional hearing. See ID at 2-3.
¶6 The appellant bears the burden of proving that the Board has
jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). An appellant who raises nonfrivolous
issues of fact relating to jurisdiction that cannot be resolved simply on
submissions of documentary evidence is entitled to a hearing on the jurisdictional
issue. See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1427-28
(Fed. Cir. 1984).
¶7 An involuntary retirement is equivalent to a forced removal and may be
appealable to the Board under chapter 75. See Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 7 (2013); Pariseau v. Department of Air Force, 113
M.S.P.R. 370, ¶ 11 (2010). However, a U.S. Postal Service employee may only
file a Board appeal under chapter 75 if she 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 an
2
Although the acknowledgment order erroneously stated that the petition for review
was untimely, see PFR File, Tab 3 at 1, it was, in fact, timely, compare ID at 5 (notice
that the initial decision would become final on June 13, 2014, unless a petition for
review was filed by that date), with PFR File, Tab 1 (petition postmarked June 13,
2014, and received June 20, 2013).
4
involuntary retirement or other adverse action under chapter 75, a U.S. Postal
Service 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. 3 See Toomey v. U.S. Postal
Service, 71 M.S.P.R. 10, 12 (1996).
¶8 Here, the record shows that the appellant is not preference eligible. IAF,
Tab 1 at 1, Tab 6 at 7. In addition, the record contains no indication that she was
a management or supervisory employee or that she was an employee engaged in
personnel work in other than a purely nonconfidential clerical capacity. See IAF,
Tab 6 at 7 (position held was that of Mail Processing Clerk). The appellant has
not argued that she fell within one of those covered categories. Instead, she
requested that the Board exercise discretion and hear her case. IAF, Tab 8 at 1.
However, the Board has no such discretion. See Schmittling v. Department of
Army, 219 F.3d 1332, 1337 (the Board only has jurisdiction where Congress has
provided it, and without jurisdiction a decision on the merits would be void). In
the absence of a nonfrivolous allegation that she fell within one of the categories
of U.s. Postal Service employees with chapter 75 Board appeal rights, the
administrative judge properly dismissed her involuntary retirement claim for lack
of Board jurisdiction, without a hearing.
3
We note that the administrative judge’s jurisdictional order described how the
appellant could show that her retirement was involuntary, without providing explicit
notice of what was required to establish that she was a U.S. Postal Service employee
covered under 5 U.S.C. § 7511(a)(1)(B) or 39 U.S.C. § 1005(a). IAF, Tab 4 at 2-3; see
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an
appellant must be apprised of what she must establish in order to invoke the Board’s
jurisdiction). However, that lack of notice was cured in the initial decision. See
Caracciolo v. Department of Treasury, 105 M.S.P.R. 663, ¶ 11 (2007) (the failure to
provide an appellant with proper Burgess notice in an acknowledgment order or
show-cause order can be cured if the initial decision itself puts the appellant on notice
of what she must do to establish jurisdiction so as to afford her the opportunity to meet
her jurisdictional burden for the first time on review).
5
The appellant failed to meet her jurisdictional burden regarding her restoration
claim.
¶9 In her petition, the appellant again argues that she was wrongfully denied
restoration. PFR File, Tab 1 at 1-2, Tab 2 at 1-2. However, we agree with the
administrative judge’s conclusion that the appellant failed to meet her
jurisdictional burden for this claim. ID at 3-5.
¶10 As previously discussed, an appellant is entitled to a jurisdictional hearing
if she makes nonfrivolous allegations of jurisdiction. See Manning, 742 F.2d at
1427-28. However, bare assertions of fact, without support, do not constitute
nonfrivolous allegations. See Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 11
(2009). As our reviewing court has noted, “Although an appellant need not prove
her entire case before she is entitled to a hearing, the [B]oard may request
sufficient evidence to determine if, in the first instance, there is any support for
what otherwise might be bald allegations.” Briscoe v. Department of Veterans
Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995).
¶11 Below, the appellant responded to the administrative judge’s jurisdiction
order, claiming that she was partially recovered, and could return to work with
appropriate modifications. IAF, Tab 10 at 2, Tab 12 at 2. She later suggested
that she could return to work with no restrictions. IAF, Tab 18 at 1. To establish
jurisdiction over a restoration claim under either scenario, an appellant must
prove by preponderant evidence, inter alia, that she requested restoration.
Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104 (Fed. Cir. 2011)
(jurisdictional requirements for restoration claim involving a partially recovered
individual); Payton v. Department of Homeland Security, 113 M.S.P.R. 463, ¶ 6
(jurisdictional requirements for a claim involving a fully recovered individual),
aff’d 403 F. App’x 496 (Fed. Cir. 2010). After reviewing the record, the
administrative judge warned that the appellant had not presented any evidence
that she requested restoration. IAF, Tab 14 at 2. Therefore, the judge ordered the
appellant to identify any such request with particularity, including when she
6
requested restoration, who she spoke with when making the request, how she
made the request, what documentation she provided with the request, and what
positions she requested or that would have fit within her limitations. Id. at 3.
The appellant responded but did so without providing any of the information the
administrative judge requested. See IAF, Tab 18.
¶12 Because the record includes only bare assertions that the agency denied
requests for restoration, without any information about those requests, see IAF,
Tab 10 at 1-2, we find no error in the administrative judge’s dismissal of the
restoration claim, see ID at 3-5. The appellant failed to meet her jurisdictional
burden and failed to present nonfrivolous allegations warranting a jurisdictional
hearing.
¶13 On review, the appellant submitted evidence that was not submitted below.
See PFR File, Tab 1 at 5-14. However, the Board will not consider evidence
submitted for the first time with the petition for review, absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the appellant
made no such showing for the evidence dated prior to her final pleading and the
initial decision. Compare PFR File, Tab 1 at 5-9 (evidence dated March 17-24,
2014), with IAF, Tab 18 (the appellant’s April 4, 2014 response to the
jurisdictional order), and ID at 1 (dated May 8, 2014). Therefore, we will not
consider it. For the same reason, we will not consider her claims that she
“submitted documentation on numerous requests to the [a]gency specifically on
March 2013, May 2013, August 2013, October 2013, Jan[uary] 2014, March 17,
2014, and May 1, 2014.” PFR File, Tab 2 at 2. Although this provides some
further detail regarding her purported restoration requests, the appellant failed to
present the information below. For the remaining evidence—correspondence with
the Office of Workers’ Compensation Programs regarding a “Notice of
Recurrence” dated after the initial decision, see PFR File, Tab 1 at 10-14—the
appellant failed to show how it relates to her Board appeal against the U.S. Postal
7
Service. We are not persuaded that it requires a different result or further action.
See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
8
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.