UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRUCE A. BLACKERBY,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DC-0752-15-0980-I-1

DATE: August 12, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Paul Y. Kiyonaga, Esquire and Gale Robert Thames, Washington, D.C., for 

the appellant.

Steven Sultan, Esquire, Washington, D.C., for the agency.

James Puchala, Bellmawr, New Jersey, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal for lack of jurisdiction. Generally, we grant 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

petitions such as this one only in the following circumstances: 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 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 dec ision. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND

¶2 The appellant filed an appeal of the agency’s decision to remove him from 

his position as a Forensic Computer Analyst. Initial Appeal File (IAF), Tab 1. 

The agency moved to dismiss the appeal, arguing that the appellant did not have 

the right to appeal an adverse action to the Board because he was not a 

preference-eligible veteran, management or supervisory employee, or confidential 

employee. IAF, Tab 5. In response, the appellant argued that he was a 

confidential employee because in the course of his actual job duties he assisted in 

effectuating highly sensitive and confidential matters involving labor relations. 

IAF, Tab 9 at 12-16. After holding a hearing, the administrative judge dismissed 

the appeal for lack of jurisdiction, finding that the appellant failed to prove by 

preponderant evidence that he was a confidential employee. IAF, Tab 30, Initial 

Decision (ID).
3

¶3 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5. 

The appellant has filed a reply. PFR File, Tab 6. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 A Postal Service employee has a right to appeal an adverse action to the 

Board, if he (1) is a preference eligible, a management or supervisory employee, 

or an employee engaged in personnel work in other than a purely nonconfidential 

clerical capacity,

2

and (2) has completed 1 year of current continuous service in 

the same or similar positions. See 39 U.S.C. § 1005(a)(4)(A); 5 U.S.C. 

§ 7511(a)(1)(B)(ii); Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012). 

¶5 It is undisputed that the appellant is not a preference eligible, manager, or 

supervisory employee. ID at 5. Thus, the Board would only have jurisdiction 

over his appeal if he is a confidential employee. The Board has adopted the 

definition of the term “confidential employees” set forth by the National Labor 

Relations Board (NLRB), which includes “those employees who: (1) ‘[A]ssist 

and act in a confidential capacity to persons who formulate, determine and 

effectuate management policy in the field of labor relations,’ or (2) ‘regularly 

have access to confidential information concerning anticipated changes which 

may result from collective-bargaining negotiations.’” Law v. U.S. Postal Service, 

77 M.S.P.R. 30, 34 (1997) (quoting McCandless v. Merit Systems Protection 

Board, 996 F.2d 1193, 1199 (Fed. Cir. 1993)). The first prong of this definition 

is referred to as the labor-nexus test. See National Labor Relations Board v. 

Hendricks County Rural Electric Membership Corporation, 454 U.S. 170, 188-89 

(1981); see also Benifield v. U.S. Postal Service, 40 M.S.P.R. 50, 53-54 (1989). 

¶6 As described in the initial decision, the appellant testified below that he met 

the definition of a confidential employee based on three examples of his job 

 

2

For ease of reference, we will refer to employees engaged in personnel work in other 

than a purely nonconfidential clerical capacity as “confidential employees.”
4

duties. First, he asserted that in or around November 2014, management enlisted 

his assistance in its efforts to keep forensic computer analyst positions exempt 

from overtime payment requirements under the Fair Labor Standards Act (FLSA). 

ID at 5. He contended that management provided him with confidential proposed 

position descriptions to review and confidential strategy memoranda on how to 

argue that these positions were exempt under the FLSA. Id. The appellant then 

met with the agency’s Organizational Effectiveness Office and explained the 

nature of the positions. Id. Second, he contended that in October 2014, he was 

allowed access to confidential personnel records of agency employees in the 

course of investigating a cyber intrusion. ID at 5-6. Third, he argued that in 

2010, he had access to computers used by agency employees when he participated 

in a confidential investigation regarding the theft of test answers for an 

employment examination. ID at 6. 

¶7 The administrative judge considered the appellant’s testimony concerning 

these job duties but found that he failed to establish he was a confidential 

employee. ID at 5-9. Regarding the first type of confidential employee, the 

administrative judge found that none of the examples cited met the labor-nexus 

test because they showed only that the appellant on occasion had access to certain 

labor-related or personnel type information, which the NLRB has found to be 

insufficient. See ID at 3, 6 (citing In re E.C. Waste, Inc., 339 N.L.R.B. 262, 282 

(2003), enforced, 359 F.3d 36 (1st Cir. 2004)). The administrative judge further 

found that the appellant failed to show that the relevant individuals to whom he 

alleged he was providing assistance were individuals who formulated, 

determined, and effectuated management policy in labor relations. ID at 8-9. 

Lastly, he found that the appellant failed to demonstrate that he acted in a 

confidential capacity regarding the first example because the alleged confidential 

information was not confidential relative to the forensic computer analysts who 
5

would be affected by the decision at issue. 3 ID at 6-7. Regarding the second type 

of confidential employee, the administrative judge found that none of the 

purportedly confidential information the appellant had access to concerned 

anticipated changes which may result from collective bargaining negotiations. ID 

at 6. 

¶8 On review, the appellant argues that the administrative judge erred in 

finding that he was not a confidential employee. PFR File, Tab 3 at 17-19. He 

reiterates his testimony below concerning the first two examples of job duties,

which he contends establish he is a confidential employee, including his roles in

assisting management’s efforts to keep the forensic computer analyst positions 

exempt from the FLSA overtime requirements and investigating a high-profile 

cyber intrusion matter. Id. The administrative judge, however, considered such 

testimony but found that it failed to establish that the appellant met the definition 

of a confidential employee. ID at 5-9. We find that the appellant’s arguments on 

review constitute mere disagreement with the administrative judge’s explained 

findings and thus do not provide a basis for reversal. See Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the 

administrative judge’s findings when she considered the evidence as a whole, 

drew appropriate references, and made reasoned conclusions); see also 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (same). For the reasons set forth in the initial decision, we agree with the 

administrative judge that the appellant failed to establish that he is a confidential 

employee.

 

3 Regarding the other two examples, the administrative judge found that these were 

“even less compelling than the first.” ID at 7. We interpret this as meaning that such 

matters are nonlabor related and so, even if confidential, fail to establish that the 

appellant is a confidential employee. See ID at 3; see also Hamilton v. U.S. Postal 

Service, 123 M.S.P.R. 404, ¶ 20 (2016) (stating that, although the appellant may have 

handled sensitive employee personnel information in the course of administrative 

investigations, mere access to personnel information is insufficient to establish 

confidential status).
6

¶9 On review, the appellant also contends that the administrative judge erred in 

finding that he was not a confidential employee because his position description

and Standard Forms 50 designate his position as nonbargaining. PFR File, Tab 3 

at 19-20. He also disputes the administrative judge’s finding that, although he

was unable to join any of the four existing unions due to their bylaws, he was not 

precluded by statute or regulation from forming his own collective bargaining 

unit. Id. The appellant contends that this finding was erroneous because various 

agency policies preclude him from forming a collective bargaining unit. Id. 

at 20-21.

¶10 We find such arguments unavailing. The Board’s jurisdiction is limited to 

those appeals filed by Postal Service employees who are excluded from 

bargaining unit membership because they are a manager, supervisor, or 

confidential employee under 39 U.S.C. § 1202. See 39 U.S.C. § 1005(a)(4)(A);

Coursen v. U.S. Postal Service, 256 F.3d 1353, 1355-56 (Fed. Cir. 2001). Thus, 

the agency’s description of the appellant’s position as a “nonbargaining” position

is not determinative. See Wilson v. U.S. Postal Service, 109 M.S.P.R. 60, ¶ 10 

(2008). Further, neither the absence of an existing collective bargaining unit for 

the appellant to join nor the fact that he may be ineligible for bargaining unit 

membership for reasons unrelated to 39 U.S.C. § 1202(1)-(2) is sufficient to bring 

the appeal within the Board’s jurisdiction. See, e.g., Coursen, 256 F.3d 

at 1355-57; Carrier v. Merit Systems Protection Board, 183 F.3d 1376, 1378-80 

(Fed. Cir. 1999); Wilson, 109 M.S.P.R. 60, ¶ 10.

¶11 Finally, the appellant argues that the administrative judge improperly failed 

to address his argument that the denial of the right to a Board appeal will deprive 

him of due process because he waived his grievance right by filing a Board

appeal. PFR File, Tab 3 at 21-23. However, because the Board’s jurisdiction is 

constrained by statute, the U.S. Court of Appeals for the Federal Circuit has 

rejected similar arguments. See Hayden v. Merit Systems Protection Board, 

646 F. App’x 1008, 1012-13 (Fed. Cir. 2016) (rejecting the appellant’s argument 
7

that the denial of a right to appeal to the Board deprived her of due process 

because jurisdiction is a threshold issue and no further process was due once the 

Board determined it lacked authority to hear the case);

4 Carrier, 183 F.3d

at 1379-80 (finding nothing in the relevant statutes or precedent to suggest that an 

appellant who fails the jurisdictional test under 39 U.S.C. § 1005 may 

nevertheless appeal to the Board on a showing that he had no readily available 

collective bargaining unit to which a grievance could be taken).

¶12 Accordingly, we affirm the initial decision dismissing the appeal for lack of 

jurisdiction.

NOTICE OF APPEAL RIGHTS5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within the ir 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

 

4

The Board may choose to follow nonprecedential decisions of the Federal Circuit if, as 

here, it finds the reasoning persuasive. See, e.g., Erlendson v. Department of Justice, 

121 M.S.P.R. 441, ¶ 6 n.2 (2014).

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, and 11. 

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obta in 
9

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 
10

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.6The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
11

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, and 11. 

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the 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.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board