UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KIRK CRABB,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-15-0173-I-1

DATE: September 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Marshall H. Tanick, Esquire, Edina, Minnesota, for the appellant.

Jessica L. Lietaer, Esquire, Denver, Colorado, 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 his 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 agency initially employed the appellant as a letter carrier. Initial 

Appeal File (IAF), Tab 6 at 15-20. In July 2014, the agency promoted him to the 

position of Supervisor, Customer Services. Id. at 14. In August 2014, the agency 

proposed to terminate the appellant for unacceptable conduct. IAF, Tab 1 at 

11-14. The agency terminated him in September 2014. Id. at 8-9. The appellant 

appealed his termination to the Board and requested a hearing. Id. at 1-6. The 

administrative judge issued a timeliness order in which she stated that the 

appellant’s appeal appeared to be untimely. IAF, Tab 3. The appellant responded 

to that order. IAF, Tab 8. The administrative judge subsequently issued a show 

cause order on jurisdiction. IAF, Tab 10. The appellant did not respond to the 

jurisdictional order. In its response to the appeal, the agency argued that the 

Board lacks jurisdiction over the appeal and that the appeal was untimely. IAF, 

Tab 6 at 6-7.

¶3 Without holding the requested hearing, the administrative judge issued an 

initial decision finding that the Board lacked jurisdiction over the appeal because 

the appellant did not have the 1 year of current continuous service required to
3

establish that he is an employee with Board appeal rights. 2 IAF, Tab 11, Initial 

Decision (ID) at 4. The appellant timely petitioned for review. Petition for 

Review (PFR) File, Tab 1. On review, the appellant asserts, inter alia, that he had 

1 year of current continuous service because he had served on detail to his last 

position prior to his appointment to the position. Id. at 6-7. Additionally, the 

appellant argues that his union failed to effectively represent him below and that 

he should not be prejudiced by the union’s ineffective representation. Id. at 

10-11. According to the appellant, he has acted with “due diligence” to collect 

evidence that will support his claim of Board jurisdiction. Id. at 8; see id., 

Exhibits 1-3 (affidavit of the appellant). Thus, the appellant urges the Board to 

remand his appeal “in the interest of justice.” PFR File, Tab 1 at 10-11. The 

agency has responded in opposition to the petition. PFR File, Tab 4. The 

appellant has filed a reply in which he asserts that the evidence he submits on 

review was not “available” to him because he did not know that the union did not 

present it. PFR File, Tab 5 at 2.

¶4 We find that the administrative judge correctly concluded that the Board 

lacks jurisdiction over this appeal. ID at 4. For a Postal Service employee to 

appeal a removal under 5 U.S.C. chapter 75, he 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. Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012) 

(citing 39 U.S.C. § 1005(a); 5 U.S.C. § 7511(a)(1)(B)(ii)). Positions may be 

deemed “similar” when they are in “the same line of work,” which the Board has

interpreted as related or comparable work that requires the same or similar 

knowledge, skills, and abilities. Pagan v. U.S. Postal Service, 111 M.S.P.R. 212, 

¶ 6 (2009).

 2 The administrative judge did not address the issue of timeliness. ID. 
4

¶5 It is undisputed that the appellant is a preference eligible; he therefore 

satisfies the first criterion. IAF, Tab 6 at 7, 14. However, we agree with the 

administrative judge that the appellant is not entitled to Board appeal rights under 

5 U.S.C. chapter 75 because he did not demonstrate below that he had 1 year of 

current continuous service in the same or similar positions. See ID at 3-4. 

Below, the record included the appellant’s Postal Service Form 50s, which 

indicated that he was appointed to the position of Supervisor, Customer Service 

in July 2014 and had previously served in the positions of Carrier Technician and 

City Carrier. IAF, Tab 6 at 14-20. The record also included the agency’s 

decision to terminate the appellant from his position, effective in September 

2014, which was less than 1 year after this appointment. IAF, Tab 1 at 8-9. The 

appellant did not present any evidence or argument that his prior positions were 

similar to the position of Supervisor, Customer Service, and the position titles 

themselves did not appear similar without any further description.

3

 We therefore 

agree, based upon the record below, that the Board lacks jurisdiction because the 

appellant did not have 1 year of current continuous service. See Slentz v. U.S. 

Postal Service, 92 M.S.P.R. 144, ¶ 5 (2002).

¶6 The evidence that the appellant submits on review does not provide a basis 

for disturbing the initial decision. See PFR File, Tab 1, Exhibits 1-3 (affidavit of 

the appellant). Under 5 C.F.R. § 1201.115(d), 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). To 

constitute new and material evidence under 5 C.F.R. § 1201.115(d), the 

information contained in the documents, not just the documents themselves, must 

 3 If the appellant had submitted evidence and argument regarding the two positions, the 

administrative judge would have been required to consider the job duties of each 

position and not simply the position titles. Newman v. U.S. Postal Service, 79 M.S.P.R. 

64, 67-68 (1998).
5

have been unavailable when the record closed despite due diligence. On review, 

the appellant submits his own affidavit, pay stubs, a self-compiled list of the job 

duties that he performed during his detail, and the agency’s description of his 

supervisor position. PFR File, Tab 1, Exhibits 1-3 (affidavit of the appellant). 

The information contained in these documents is not new because it includes the 

appellant’s recollections from prior to his termination in his affidavit and 

summary of job duties during his detail and documents that could have been 

obtained below. We therefore do not consider this evidence.

¶7 Additionally, the Board generally will not consider an argument raised for 

the first time in a petition for review absent a showing that it is based on new and 

material evidence not previously available despite the party’s due diligence. 

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Thus, we do 

not consider the appellant’s new arguments concerning the similarity of his 

previous position to his Supervisor, Customer Services position.

4 PFR File, 

Tab 1 at 2-3.

¶8 Further, we are not persuaded by the appellant’s arguments regarding 

ineffective representation by his union. PFR File, Tab 1 at 10-11. The Board has 

long held that an appellant is responsible for the failings of his chosen 

representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). 

The appellant designated the union as his representative in his initial appeal form. 

IAF, Tab 1 at 5. He asserts on review that he voluntarily participated with the 

union in his appeal through receipt of the administrative judge’s orders and 

participation in a conference call. PFR File, Tab 5 at 4; see IAF, Tab 7. 

 4 The Board previously has held that an employee’s period of service as an acting 

supervisor does not entitle him to the rights of the position to which he was detailed 

and, therefore, cannot be credited toward his completion of the 1 year of service in the 

same or similar positions required to qualify as an “employee” under 5 U.S.C. chapter 

75. Goodman v. U.S. Postal Service, 36 M.S.P.R. 127, 129 (1988). Therefore, even if 

we considered the appellant’s argument regarding the alleged similarity of his prior 

position to his Supervisor, Customer Services position, the result would remain the 

same.
6

Accordingly, we find that the appellant’s assertions concerning the union’s 

ineffective representation do not provide a basis for disturbing the initial 

decision. See Hoback v. Department of the Treasury, 86 M.S.P.R. 425, ¶ 14 

(2000) (finding that the appellants were responsible for any lack of documentary 

evidence submitted below on the issues of jurisdiction and timeliness, despite 

their arguments that any lack of evidence was the fault of their chosen 

representatives); see also Echols v. Defense Logistics Agency, 11 M.S.P.R. 404, 

406 (1982) (rejecting the appellant’s assertions regarding the union’s ineffective 

representation where the appellant acknowledged on review that he was aware of 

a representation problem with his union but failed to raise it below). Finally, 

although the appellant generally asserts that we should grant his petition in “the 

interests of justice,” PFR File, Tab 1 at 10-11, we decline to do so because he has 

not shown any legal error in the initial decision, see Weaver v. Department of the 

Navy, 2 M.S.P.R. 129, 134 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) 

(per curiam), and his arguments on review provide no other basis for granting his 

petition.

5

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. 

 5 Because the Board lacks jurisdiction, we need not address the timeliness issue. See 

Tardio v. Department of Justice, 112 M.S.P.R. 371, ¶ 30 (2009).
7

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.

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

United States 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 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