NOTE: This disposition is nonprecedential.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 Associate with the U.S. Postal Service from 2006 to 2012, when 

she was removed for violating the Postal Service’s Standard of Conduct, based on the following event: On Saturday 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 “employee” 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 preference 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 during 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 period 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 beginning 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 authorized. 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. Dabney received a campaign badge or served in a campaign 

for which a campaign badge has been authorized. Although 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/veteransservices/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 inaccurately 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); GordonCureton 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 January 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 Argument, 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 appropriate. Accordingly, the motion is denied.