UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMILLAH MARIE HARRIS,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0752-16-0156-I-1 

DATE: June 9, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jamillah Marie Harris, Lyndhurst, New Jersey, pro se.

Anne M. Gallaudet, Esquire, New York, New York, 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 her 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

administrative 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. 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 

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). 

BACKGROUND

¶2 The agency appointed the nonpreference‐eligible appellant to a Mail 

Handler Assistant position, effective August 9, 2014. Initial Appeal File (IAF), 

Tab 1 at 1, Tab 2 at 33, Tab 7 at 8‐9. Less than a year later, the agency removed 

the appellant from her position, effective July 26, 2015, based on charges of 

conduct unbecoming a U.S. Postal Service employee and failure to meet the 

attendance requirements of her position. IAF, Tab 2 at 21‐26. 

¶3 Approximately 6 months later, on January 20, 2016, the appellant filed a 

Board appeal challenging her removal, in which she alleged that she had been 

sexually harassed by agency managers. IAF, Tab 1 at 3, 5. With her appeal form, 

the appellant submitted a large volume of documents, including copies of 

correspondence that she sent to her union representative, the Postmaster General, 

and the agency’s equal employment opportunity office, in which she described 

her claims of sexual harassment, and alleged that she was removed in retaliation 

for whistleblowing. IAF, Tab 2 at 9‐10, 17‐18, 30.

¶4 The administrative judge issued an acknowledgment order, which explained 

that, as a U.S. Postal Service employee, to establish the Board’s jurisdiction over 

her appeal, the appellant was required to demonstrate that she: (1) was a 
3

preference-eligible employee, a management or supervisory employee, or an 

employee engaged in personnel work in other than a purely nonconfidential 

clerical capacity; and (2) had completed 1 year of current continuous service in 

the same or a similar position. IAF, Tab 3 at 2 (citing 39 U.S.C. § 1005(a) 

and 5 U.S.C. § 2108). The administrative judge ordered the appellant to submit 

evidence and argument regarding the Board’s jurisdiction over her appeal. Id.

¶5 In response, the appellant submitted additional documents, including copies 

of correspondence that she sent to various Government officials regarding her 

removal and her claims of sexual harassment, IAF, Tab 5 at 3‐9, 15‐20, 26‐40, 

54‐59, 63‐71, 73‐75, and documents pertaining to a grievance that she filed 

regarding her removal, id. at 11‐12, 22‐25. The agency moved to dismiss the 

appeal for lack of jurisdiction. IAF, Tab 7. Subsequently, the appellant filed 

additional documents, including copies of her paychecks, documentation 

regarding her grievance, and additional correspondence to the Postmaster 

General. IAF, Tab 8. 

¶6 Thereafter, the administrative judge issued an initial decision dismissing the 

appeal for lack of jurisdiction without holding the appellant’s requested hearing. 

IAF, Tab 10, Initial Decision (ID); IAF, Tab 1 at 2. 2

 He found that the appellant 

failed to raise a nonfrivolous allegation that she was a U.S. Postal Service 

employee entitled to appeal her removal to the Board under 5 U.S.C. chapter 75. 

ID at 3. He further found that the appellant’s claims of whistleblower reprisal 

were not an independent source of Board jurisdiction because U.S. Postal Service 

employees are not entitled to seek corrective action under 5 U.S.C. § 1221. ID 

at 4. 

 2 The administrative judge declined to address whether the appeal was timely filed, 

having dismissed the appeal for lack of jurisdiction. ID at 4 n.2; Jafri v. Department of 

the Treasury, 68 M.S.P.R. 216, 221 (1995) (finding that, when an appeal was properly 

dismissed for lack of jurisdiction, an administrative judge correctly declined to address 

whether the appeal was timely filed), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (Table).
4

¶7 The appellant has filed a petition for review of the initial decision. Petition 

for Review (PFR) File, Tabs 1‐2, 4‐6. 3

 The agency has not responded to the 

petition for review. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The Board’s jurisdiction 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). An appellant who makes a nonfrivolous 

allegation of jurisdiction is entitled to a hearing at which she then must prove 

jurisdiction by a preponderance of the evidence. Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); see 5 C.F.R. 

§ 1201.56(b)(2)(i)(A).

¶9 A U.S. Postal Service employee may file a Board appeal under 5 U.S.C. 

chapter 75 only if she is covered by 39 U.S.C. § 1005(a) or 5 U.S.C. 

§ 7511(a)(1)(B). See 5 U.S.C. § 7511(b)(8). Thus, as correctly stated by the 

administrative judge, to appeal an adverse action under chapter 75, a U.S. Postal 

Service employee must: (1) 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) have completed 1 year of current 

continuous service in the same or similar positions. ID at 2; see Toomey v. U.S. 

Postal Service, 71 M.S.P.R. 10, 12 (1996).

 3 After she filed her petition for review, the appellant attempted to submit several 

additional pleadings, but was advised by the Office of the Clerk of the Board that the 

Board’s regulations at 5 C.F.R. § 1201.114(a)(5) do not allow for these types of 

pleadings. PFR File, Tabs 8‐14. The Clerk of the Board advised the appellant that she 

could submit a motion requesting leave to file additional pleadings, explaining the 

nature and the need for the pleadings, and showing that the evidence was not readily 

available before the record closed. Id.; see 5 C.F.R. § 1201.114(a)(5), (k). The 

appellant did not file such a motion. Thereafter, on June 6 and June 8, 2016, the 

appellant submitted additional pleadings. PFR File, Tabs 15-16. Because the appellant 

similarly did not comply with the Board’s regulation that required her to file a motion 

and obtain leave to submit these additional pleadings, see 5 C.F.R. § 1201.114(a)(5), we 

have not considered these pleadings on review.
5

¶10 Here, it is undisputed that the appellant is not preference eligible. IAF, 

Tab 1 at 1, Tab 2 at 33, Tab 7 at 8‐9. Furthermore, the appellant was a Mail 

Handler Assistant and she has not alleged, either below or on review, that she was 

a management or supervisory employee, or an employee engaged in personnel 

work in other than a purely nonconfidential clerical capacity. IAF, Tabs 1-2, 5, 

7-8; PFR File, Tabs 1‐2, 4‐6. Accordingly, we agree with the administrative 

judge that the appellant failed to raise a nonfrivolous allegation that she was a 

U.S. Postal Service employee entitled to appeal her removal under 5 U.S.C. 

chapter 75. ID at 3.

¶11 On review, the appellant contends that the administrative judge’s paralegal

failed to accept all of the evidence that she submitted below. 4

 PFR File, Tab 5

at 4, Tab 6 at 1. The appellant attempted to file two additional submissions 

below, which were received after the record closed and the initial decision had 

been issued. IAF, Tabs 12-13. These submissions were rejected by the 

administrative judge and returned to the appellant. Id. In the acknowledgment 

order, the administrative judge notified the appellant when the record would close 

and that he would not accept any further evidence or argument on the issue of 

jurisdiction after the record closed. IAF, Tab 3 at 2. Therefore, we discern no 

error in the administrative judge’s failure to consider the appellant’s additional 

submissions. Blackmer v. Department of the Navy, 52 M.S.P.R. 571, 574 (1992) 

(finding that determining when to close the record is within the administrative 

judge’s sound discretion, provided that such discretion comports with basic 

requirements of fairness and notice); see 5 C.F.R. § 1201.43(c) (authorizing an 

 4 The appellant further asserts she wants her appeal to be reviewed by someone 

honorable and ethical. PFR File, Tab 5 at 4, Tab 6 at 1. We construe this allegation as 

a claim that the administrative judge was biased or prejudiced. In making a claim of 

bias or prejudice against an administrative judge, a party must overcome the 

presumption of honesty and integrity that accompanies administrative adjudicators.

Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). We find that the 

appellant has failed to meet that burden.
6

administrative judge to refuse to consider any pleading that is not filed in a timely 

fashion).

¶12 The appellant further contends that the evidence she attempted to submit 

would have demonstrated that she was reinstated to a position with the agency 

“until August of 2016.” 5

 PFR File, Tab 5 at 4, Tab 6 at 1. By this, it appears that 

the appellant may be arguing that she has Board appeal rights under 5 U.S.C. 

chapter 75 because she had completed 1 year of current continuous service in the 

same or similar positions at the time she filed her Board appeal. PFR File, Tab 5 

at 4, Tab 6 at 1. However, even assuming that the appellant completed 1 year of 

current continuous service in the same or similar positions, she failed to raise a 

nonfrivolous allegation that she was preference eligible, a management or 

supervisory employee, or an employee engaged in personnel work in other than a 

purely nonconfidential clerical capacity and, therefore, the Board lacks 

jurisdiction over her appeal under 5 U.S.C. chapter 75. Toomey, 71 M.S.P.R. 

at 12‐13.

¶13 We further agree with the administrative judge that the Board lacks 

jurisdiction over the appellant’s sexual harassment and retaliation claims, either 

as a separate appeal or as affirmative defenses. ID at 4. The administrative judge 

correctly found that employees of the U.S. Postal Service cannot file individual 

right of action (IRA) appeals seeking corrective action for retaliation for 

whistleblowing.

6

 Id.; see Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 6 

 5 In the agency’s pleading below, it contended that it had placed the appellant in a leave 

without pay status pending arbitration proceedings on her grievance regarding her 

removal. IAF, Tab 7 at 5. 

6 In so finding, the administrative judge erroneously referenced the Whistleblower 

Protection Act (WPA). ID at 4. The alleged retaliatory actions at issue here took place 

after the December 27, 2012 effective date of the Whistleblower Protection 

Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465, and, therefore, 

the WPEA, rather than the WPA, applies to this appeal. IAF, Tab 1 at 3, Tab 2 

at 21-26; see WPEA § 202 (indicating that the WPEA would take effect 30 days after 

its enactment date of November 27, 2012). However, we find that this error was not 
7

(2004); Matthews v. U.S. Postal Service, 93 M.S.P.R. 109, ¶ 13 (2002). 

Furthermore, absent an otherwise appealable action, the Board lacks jurisdiction 

to consider the appellant’s claims of sexual harassment, retaliation, and 

prohibited personnel practices. Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, 

¶ 13 (2010) (finding that the Board lacks jurisdiction to consider claims of 

discrimination and retaliation absent an otherwise appealable action); Wren v. 

Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited 

personnel practices under 5 U.S.C. § 2302(b) are not an independent source of 

Board jurisdiction), aff’d, 681 F.2d 867, 871‐73 (D.C. Cir. 1982). 

¶14 Finally, with her petition for review, the appellant has submitted documents

that were not contained in the record below, the majority of which consist of: 

(1) additional correspondence that she sent to various individuals regarding her 

claims of sexual harassment, her removal, and her grievance; and (2) documents 

pertaining to attempts by the agency’s Office of Inspector General to question her

about her numerous letters to the Postmaster General. PFR File, Tabs 1-2, 4. The 

Board generally will not consider evidence submitted for the first time on review 

absent a showing that: (1) the documents and the information contained in the 

documents were unavailable before the record closed despite due diligence; and 

(2) the evidence is of sufficient weight to warrant an outcome different from that 

of the initial decision. Carson v. Department of Energy, 109 M.S.P.R. 213, ¶ 21 

(2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); 5 C.F.R. § 1201.115(d). 

Regardless of whether the evidence at issue was available before the record 

closed below, the appellant has failed to demonstrate that it would establish 

Board jurisdiction over her appeal and, consequently, the evidence is not material 

to the outcome of her case. Russo v. Veterans Administration, 3 M.S.P.R. 345, 

 

prejudicial to the appellant’s substantive rights because nothing in the WPEA permits a 

U.S Postal Service employee to file an IRA appeal. Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not 

prejudicial to a party’s substantive rights provides no basis for reversal of an initial 

decision).
8

349 (1980) (stating that 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). Accordingly, we will not 

consider this evidence. 

¶15 In sum, for the reasons discussed above, we find that the administrative 

judge correctly concluded that the Board lacks jurisdiction over the appellant’s 

appeal. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS7

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit.

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. 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

 7 The administrative judge did not afford the appellant notice of appeal rights under the 

WPEA. Although the administrative judge correctly found that the Board lacks 

jurisdiction over the appellant’s whistleblowing claims, the Board has an obligation to 

properly inform the appellant of the right to appeal that finding. We notify the 

appellant of her appeal rights under the WPEA in this Final Order. 
9

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

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 about the U.S. Court of Appeals for the Federal Circuit 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. Additional 

information about other courts of appeals can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, 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
10

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board