UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EFREN Z. ANGUIANO,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-18-0553-I-1

DATE: February 29, 2024

THIS ORDER IS NONPRECEDENTIAL1

Waite P. Stuhl, Esquire, St. Louis, Missouri, for the appellant.

James Gursky, Potomac, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

The appellant has filed a petition for review of the initial decision that

dismissed the appeal of his removal for lack of Board jurisdiction. For the

reasons discussed below, we GRANT the appellant’s petition for review,

VACATE the initial decision, and REMAND this case to the Central Regional

Office to hold a jurisdictional hearing in accordance with this Remand Order. 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND

On August 13, 2018, the agency removed the appellant from the position of

EAS-23 International Mail Security Specialist for failing to maintain a condition

of employment due to his inability to hold a security clearance. Initial Appeal

File (IAF), Tab 1 at 6-7. At the time of his removal, the appellant, a

nonpreference eligible, had served in this position for nearly 5 years. IAF, Tab 1

at 1; Petition for Review (PFR) File, Tab 1 at 11. 

The appellant filed a Board appeal contesting his removal and requested a

hearing. IAF, Tab 1 at 2. Due to the appellant’s employment at the U.S. Postal

Service, a question of whether the Board had jurisdiction over the appeal existed.

The administrative judge issued an order directing both parties to file argument

and evidence on the issue. IAF, Tab 3. In response, the appellant averred that he

held a supervisory and management position for at least 1 year continuously at

the time of his removal, resulting in Board jurisdiction over his appeal. IAF,

Tab 7 at 1-2. The agency objected by contending that the appellant did not raise a

nonfrivolous allegation evidencing Board jurisdiction. IAF, Tab 9 at 4-13. On

September 28, 2018, the administrative judge issued an initial decision dismissing

the appeal, holding that the appellant failed to make a nonfrivolous allegation of

Board jurisdiction, meaning that he was not entitled to a jurisdictional hearing.

IAF, Tab 10, Initial Decision (ID) at 1-6. The appellant then filed a petition for

review, and the agency responded in opposition. PFR File, Tabs 1, 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A Postal Service

employee may file a Board appeal of an agency action taken under chapter 75,

such as a removal, only if he 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 a removal under

2
chapter 75, a Postal 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. 39 U.S.C.§ 1005(a)

(4)(A); 5 U.S.C. § 7511(a)(1)(B); McCandless v. Merit Systems Protection Board,

996 F.2d 1193, 1198-99 (Fed. Cir. 1993). 

Before the administrative judge, the appellant, a nonpreference eligible,

claimed that he served in a supervisor and management position for at least 1 year

continuously at the time of his removal. IAF, Tab 7 at 1-2. For purposes of

determining whether a nonpreference eligible Postal Service employee is a

“supervisor” who may appeal an adverse action to the Board, the two particular

functions that are most often substantially determinative are (1) the authority to

discharge or discipline another employee, or effectively to recommend that

another employee be disciplined or discharged; and (2) the employee’s authority

to responsibly direct the actions of other employees. Bolton v. Merit Systems

Protection Board, 154 F.3d 1313, 1317-18 (Fed. Cir. 1998). The definition of

“manager” for these purposes is one who formulates and effectuates management

policies by expressing and making operative the decisions of their employer. Id.

at 1318.

Prior to the issuance of the initial decision, the appellant did not receive

sufficient information on what was required of him to establish an appealable

jurisdictional issue.

An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). An appellant bears the burden to

establish jurisdiction over his adverse action appeal by preponderant evidence.

Vitale v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007); 5 C.F.R.

§ 1201.56(b)(2)(i)(A). Where an appellant sets forth a nonfrivolous allegation of

Board jurisdiction, he is entitled to a hearing on the jurisdictional question.

3
Lara v. Department of Homeland Security, 101 M.S.P.R. 190, ¶ 7 (2006); see

Burgess, 758 F.2d at 643-44. A nonfrivolous allegation is an allegation of fact

which, if proven, could establish a prima facie case of Board jurisdiction over the

appeal. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R.

§ 1201.4(s). An allegation generally will be considered nonfrivolous when, under

oath or penalty of perjury, an individual makes an allegation that is more than

conclusory, plausible on its face, and material to the legal issues in the appeal.

5 C.F.R. § 1201.4(s).

In this case, as the appellant argues in his petition for review, the

Jurisdiction Order issued by the administrative judge failed to provide him with

explicit information on his requirement to establish an appealable jurisdictional

issue. IAF, Tab 3; PFR File, Tab 1 at 5-9. Specifically, the order did not

mention the nonfrivolous allegation standard that the appellant had to meet to

attain a jurisdictional hearing. IAF, Tab 3; see Scott v. Department of Justice,

105 M.S.P.R. 482, ¶ 5 (2007) (noting that the jurisdictional notice provided to the

appellant was inadequate because it did not offer any explicit information about

the argument and evidence that the appellant in the case had to present in order to

nonfrivolously allege Board jurisdiction). Instead, the order focused exclusively

on how the appellant could establish by preponderant evidence his status as a

preference eligible, despite the fact that he previously indicated that he was not

preference eligible. IAF, Tab 1 at 1, Tab 3 at 2-3. There was no information

provided to the appellant on how to set forth sufficient argument and evidence to

raise a nonfrivolous allegation that he served in a supervisory or management

position at the time of his removal, which is where he grounded his argument in

Board jurisdiction. IAF, Tab 3, Tab 7 at 1. The Board has held that an appellant

cannot be expected to “fight a fog of generality” that is created by an insufficient

notice of what must be alleged in order to receive a jurisdictional hearing. Scott,

105 M.S.P.R. 482, ¶ 5. 

4
Nevertheless, the failure of an administrative judge to provide an appellant

with the proper Burgess notice can be cured if an agency’s pleadings contain the

notice that was lacking or if the initial decision puts an appellant on notice of

what he must do to establish jurisdiction, thus affording him the opportunity to

meet the jurisdictional burden on review. Id., ¶ 6. In this case, notice of the

appropriate jurisdictional standard is piecemealed between the agency’s response

to the Jurisdiction Order and the initial decision. 2 See generally IAF, Tab 9

at 4-12; ID at 1-6. In his petition for review, the appellant proffered argument

and evidence to meet the nonfrivolous allegation of Board jurisdiction standard,

which we will now consider. PFR File, Tab 1 at 4-12. 

The appellant set forth a nonfrivolous allegation of Board jurisdiction, entitling

him to a jurisdictional hearing on the appeal of his removal. 

In his petition for review, the appellant submitted a sworn affidavit laying

out his claim that he served in a supervisory position at the time that he was

removed from the agency.3 PFR File, Tab 1 at 11-12. Particularly, the appellant

stated that his supervisory responsibilities over seven employees consisted of

hiring, directing workload, disciplining, and conducting performance evaluations.

Id. These are the types of functions that fall under the purview of a “supervisor”

that the Board considers determinative when assessing jurisdiction over adverse

action appeals of Postal Service employees. Bolton, 154 F.3d at 1317-18. The

appellant’s rather specific claim regarding holding a supervisory position at the

time of his removal is made under the penalty of perjury, is plausible on its face,

and is material to the legal jurisdictional issue present in this appeal. If the

appellant’s contention in his sworn affidavit is proven, then he will be deemed a

2

 The appellant did not have the opportunity to respond to the agency’s response to the

Jurisdiction Order prior to the issuance of the initial decision. IAF, Tab 3 at 3-4. 

3

 On review, the appellant advances the claim that he served in a supervisory position

and not in a management position. PFR File, Tab 1 at 11-12. 

5
supervisor, and it would establish Board jurisdiction over the appeal of his

removal.4 

Therefore, after receiving explicit information on what was required of him

to establish an appealable jurisdictional issue, the appellant set forth a

nonfrivolous allegation of Board jurisdiction. See Smirne v. Department of the

Army, 115 M.S.P.R. 51, ¶ 11 (2010) (holding that the appellant’s sworn statement

was sufficient to constitute a nonfrivolous allegation of Board jurisdiction). The

appellant is now entitled to a jurisdictional hearing on the matter. See Walker v.

Department of the Army, 119 M.S.P.R. 391, ¶ 17 (2013) (remanding for a

jurisdictional hearing as the appellant made a nonfrivolous allegation of Board

jurisdiction). 

ORDER

For the reasons discussed above, we remand this case to the Central

Regional Office to hold a jurisdictional hearing in accordance with this Remand

Order. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

4

 It remains undisputed that the appellant is a nonpreference eligible that served in his

position for at least 1 year continuously at the time of his removal. IAF, Tab 1 at 1,

Tab 7 at 2, Tab 9 at 5. 

6