UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ALESIA CLAXTON MITCH ELL, Appellant,

v.
UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DC

- 3443

- 16

- 0164

- I

- 1

DATE: March 25, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Casanova Hambrick , C larkton , North Carolina, for the appellant.

Tanisha J. Locke
, Esquire, Charlotte, North Carolina, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed this appeal for lack of 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 on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the

1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

administrative judge’s rulings during either the course of the appe al or the initial
decision were not c onsistent 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 whe n 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, we conclude that the petitioner has not

esta blished any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision
,

w h ich is no w the Board’s fin al decision. 5 C.F.R. § 1201.113 (b)

. ¶2 The appellant, an EAS

- 17 Supervisor for the U.S. Postal Servi ce, filed an appeal on November 24, 2014, challenging a proposed letter of warning in lieu of
a 7

- day suspension, which she received on September 16, 2015. Initial Appeal File (IAF), Tab 1. The administrative judge issued an order notifying the appellant of the Board’s timeliness and juri sdictional requirements and directing her to file evidence and argument showing that the Board has jurisdiction over her claims and that her appeal was timely filed. IA F, Tab 4. The agency responded by filing a motion to dismiss the appeal for lack of ju risdiction. IAF,
Tab 5. The appellant did not respond to the order or oppose the agency’s motion
to dismiss her appeal. ¶3 Without holding the hearing requested by the appellant, t he administrative judge granted the agency’s motion and dismissed the appea l for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID). The administrative judge also
found that the appellant filed an untimely appeal and that she offered no evidence or argument that her appeal was timely filed or that she had good cause for fi ling
late

. ID at 2

- 3. The appellant filed a petition for review of the initial decision, and the agency responded in opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3.3

¶4 The Board’ s jurisdiction is limited to those matters over which it has been given jurisdicti on by law, rule, or regulation. Maddox v. Merit Systems
Protection Board
, 759 F.2d 9 , 10 (Fed. Cir. 1 985); 5 C.F.R. § 1201.3 (a). Under
5 U.S.C. § 7512 , the Board may entertain appeals to revie w the following adverse agency actions: (1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less. The warning letter issued by the U.S. Postal Service
, on which the app ellant bases her appeal, fall s outs ide these statutory categories. ¶5 On review, the appellant asks the Board to reopen her case so that she can receive due process on the proposed letter of warning she received from the agency. PFR File, Tab 1 at 3. The appellant, however, does not dispute the administrative judge’s findings that the Board has no jurisdiction over her appeal.
ID at 3

- 4. Because the appellant’s arguments on review present no basis for disturbing the initial decision dismissing her appeal for lack of jurisdiction, we find that the administrative judge properly dismissed this appeal for lack of jurisdiction and we need not address the timeliness of this appeal. 2

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the rig ht to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washingt on, DC 20439

2 On review, the appellant also states that she is still waiting for the agency to respond to her di scovery request. PFR File, Tab 1 at 3. There is no indication that the appellant filed a motion to compel discovery during the proceeding below consistent with the Board’s regulations regarding time ly dis covery. See 5 C.F.R. § 1201.73

. Accordingly, her argument provide s no b asis for disturbing the initial decision

.4

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. § 7 703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choos e 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 Managem ent , 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 th e Federal law that gives you this right. It is found in
title 5 of the U.S. 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.usc ourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practi ce , and Forms 5, 6, and 11. If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circ uit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protect ion Boar d neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board