UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CARLIN SACKEY,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0752-15-0098-I-1

DATE: July 17, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Soledad Nunez, Bridgeport, Connecticut, for the appellant.

Leslie L. Rowe, 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 the appellant’s removal 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the facts of the case; the 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 nonpreference-eligible appellant filed a timely appeal with the Board 

challenging his removal from the position of Letter Carrier and arguing that his 

removal was based on race discrimination. Initial Appeal File (IAF), Tab 1. The 

administrative judge issued a show cause order on jurisdiction. IAF, Tab 3. In 

the order, the administrative judge informed the appellant of the jurisdictional 

issues in his appeal and ordered him to submit evidence and argument to meet his 

burden of proving by preponderant evidence that the Board has jurisdiction over 

his appeal. Id. at 1. The appellant did not respond to the order, and the 

administrative judge dismissed the appeal for lack of jurisdiction without holding 

the hearing requested by the appellant. IAF, Tab 5, Initial Decision (ID) at 1. 

¶3 In the initial decision, the administrative judge found that the appellant 

failed to establish that the Board has jurisdiction over his removal appeal because 

there was no dispute that he is not preference-eligible, he held a craft position, 

and his bargaining unit was represented by the National Association of Letter 

Carriers (NALC). ID at 3; see IAF, Tab 1 at 1, 4, 6. Based on these undisputed 

facts, the administrative judge held that the appellant is not an employee with the 

right to appeal an adverse action to the Board. ID at 3. The administrative judge 

also found that the appellant’s claim of race discrimination was not an 
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independent source of Board jurisdiction. Id. The appellant filed a petition for 

review arguing the merits of his appeal, and he attached various documents that 

have no apparent relevance to the issue of jurisdiction. Petition for Review File, 

Tab 1. 

¶4 The appellant has the burden of proving by preponderant evidence that the 

Board has jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). To 

appeal an adverse action under 5 U.S.C. § 7512, a Postal Service employee 

(1) must be a preference eligible as defined by 5 U.S.C. § 2108, or 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 one year 

of current, continuous service in the same or similar positions. IAF, Tab 3 at 

1; see 39 U.S.C. § 1005(a)(4)(A); 5 U.S.C. § 7511(a)(1)(B)(ii); see also Dodson 

v. U.S. Postal Service, 67 M.S.P.R. 84, 86 (1995). On review, the appellant does 

not dispute the administrative judge’s finding that he has no right to appeal his 

removal because he is not preference-eligible, and he held a craft position in a 

bargaining unit represented by NALC. ID at 3. We therefore find no reason to 

disturb the initial decision dismissing his appeal for lack of jurisdiction, and we 

deny his petition for review. 

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. 
4

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