                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


     United States Court of Appeals for the Federal Circuit

                                        04-3294



                               THOMAS V. OSLOWSKI,

                                                             Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                             Respondent.


                            __________________________

                             DECIDED: December 9, 2004
                            __________________________

Before MAYER, Chief Judge, MICHEL and LINN, Circuit Judges.

PER CURIAM.

      Thomas V. Oslowski appeals the final decision of the Merit Systems Protection

Board (“Board”) dismissing his appeal for lack of jurisdiction. Oslowski v. United States

Postal Serv., No. PH752S030269-I-1 (M.S.P.B. Mar. 30, 2004) (“Final Decision”).

Because we agree that the Board lacks jurisdiction over Oslowski’s appeal, we affirm.

                                    BACKGROUND

      In 1977, Oslowski was employed as a distribution clerk with the United States

Postal Service (“Postal Service” or “agency”) facility in Bellmawr, New Jersey.      On

January 21, 1977, I. Ferro, Oslowski’s supervisor, wrote to the Director of Employee
and Labor Relations complaining about Oslowski’s work performance (“Ferro letter”).

Specifically, Ferro wrote that “Oslowski is not performing his duties in a satisfactory

manner.”    Ferro concluded that “[i]t is my opinion that Mr. Oslowski is not able to

perform his duties and in his condition may be a hazard both to himself and others and

that he should not be permitted to work until he is fully able.” While the Ferro letter

proposed no concrete disciplinary action, Oslowski was removed from his position at the

agency sometime in 1977.1

       The Ferro letter has been the centerpiece of several proceedings initiated by

Oslowski.    In 2000, Oslowski filed a complaint with the Office of Special Counsel

(“OSC”) alleging that the Ferro letter was “insulting” and written without his knowledge.

On March 20, 2000, the OSC notified Oslowski that it had no authority to pursue his

complaint, as he provided no facts that would constitute a personnel practice or any

other prohibited activity within its investigative jurisdiction. The OSC added that even if

Oslowski had alleged a prohibited personnel practice, the provisions of the

Whistleblower Protection Act (“WPA”) do not apply to current or former Postal Service

employees.

       In May 2000, Oslowski filed an individual right of action (“IRA”) with the Board,

which on June 14, 2000 dismissed for lack of jurisdiction, finding that, as a former

Postal Service employee, Oslowski had no right to seek corrective action under the

WPA, and that Oslowski’s IRA concerned a matter which arose before 1989, the




1
 It is unclear whether the Ferro letter had any direct relation to Oslowski’s subsequent
removal, which Oslowski does not appeal. Also, it appears that Oslowski was rehired
by the agency and remained employed there until approximately 1981.


                                         2
effective date of the WPA. Oslowski’s subsequent petitions for review were denied by

both the full Board and the Equal Employment Opportunity Commission (“EEOC”).

       On April 2, 2003, Oslowski again complained of the “insulting” Ferro letter to the

OSC, which responded for a second time that it lacked jurisdiction to review complaints

by former Postal Service employees. On May 30, 2003, Oslowski appealed to the

Board, challenging the Ferro letter as a “[p]ersonnel action taken to degrade in every

way possible.” Oslowski also claimed that he was suspended for seven days in 1977 as

a result of his whistleblowing activity. He argued that the suspension was intended “to

cause fear in other postal workers speaking up.” Oslowski submitted no records of the

alleged suspension.

       On June 4, 2003, the Administrative Judge (“AJ”) issued an Acknowledgment

Order questioning the Board’s jurisdiction over Oslowski’s appeal and informing him that

he bears the burden of showing that the Board has jurisdiction. On June 10, 2003, the

AJ issued a Show Cause Order, again raising the issue of jurisdiction and noting that

Oslowski’s appeal may be precluded by his earlier appeal to the Board.            Oslowski

responded to the Show Cause Order five times in writing and responded orally during a

telephonic status conference.

       On June 10 and 13, 2003, the agency moved to dismiss the appeal as untimely,

outside the Board’s jurisdiction, and barred by his May 2000 appeal. On July 18, 2003,

the AJ dismissed Oslowski’s appeal for lack of jurisdiction, explaining that neither letters

of counseling, warning, or reprimand nor suspensions of fourteen days or less are within

the Board’s jurisdiction. Oslowski v. United States Postal Serv., No. PH-752-03-269-I-1

(M.S.P.B. July 18, 2003) (“Initial Decision”). The AJ also explained that Oslowski’s




                                         3
allegations of prohibited discrimination and personnel practices, standing alone, do not

confer Board jurisdiction over his appeal.      The AJ further noted that the OSC had

previously rejected Oslowski’s discrimination claims, because the WPA does not cover

actions by the Postal Service or actions occurring prior to its effective date, July 9, 1989.

Finally, the AJ concluded that Oslowski was attempting to relitigate the same issues

raised in his previous appeal to the Board.

       The Initial Decision became final on March 30, 2004. On May 14, 2004, the

EEOC denied Oslowski’s petition for review of the Board’s decision, as the Board did

not address any matters within the EEOC’s jurisdiction.

       Oslowski timely appealed to this court on May 19, 2004. We have jurisdiction

under 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       Our review of an appeal from a Board decision is limited in scope. We must

affirm the Board’s decision unless we find it arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; obtained without procedures required by law,

rule, or regulation having been followed; or unsupported by substantial evidence. 5

U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361

(Fed. Cir. 1998).

       The Board’s jurisdiction is not plenary. Instead, the Board has jurisdiction over

agency actions when the appeals are authorized by law, rule or regulation. 5 C.F.R.

§ 1201.3(a)(2003). Under 5 U.S.C. § 7512, the Board may entertain appeals to review

the following adverse agency actions:         (1) removal; (2) suspension for more than

fourteen days; (3) reduction in grade; (4) reduction in pay; and (5) furlough of thirty days




                                          4
or less. Both actions by the Postal Service on which Oslowski bases his appeal — the

Ferro letter and the alleged seven-day suspension — fall outside these statutory

categories. As the AJ correctly explained, letters of counseling, warning, or reprimand

are not within the Board’s jurisdiction. Initial Decision, slip op. at 4 (citing McVay v. Ark.

Nat’l Guard, 80 M.S.P.R. 120, 123 (1998); Marks v. U. S. Postal Serv., 78 M.S.P.R.

451, 454 (1998)). Neither does a suspension of fourteen days or less vest the Board

with jurisdiction. See 5 U.S.C. § 7512(2).

       On appeal before this court, Oslowski also contends that the actions of the Postal

Service constitute prohibited personnel practices under 5 U.S.C. § 2302(b), and claims

he was entitled to file an IRA when the OSC declined to take any corrective action in

response to his complaint. While letters of reprimand can constitute personnel actions

upon which an IRA may be based, see 5 U.S.C. § 2302(a)(2)(A)(iii); McVay, 80

M.S.P.R. at 123, Oslowski still has no right to bring an IRA. See Booker v. Merit Sys.

Prot. Bd., 982 F.2d 517 (Fed. Cir. 1992). As this court explained in Booker,

       According to section 2302, a “personnel action” may be considered a
       “prohibited personnel practice” only if it occurs within an “agency” as that
       word is defined. The definition of “agency” in section 2302(a)(2)(C) does
       not include the United States Postal Service, which is specifically excluded
       from the generally applicable definition of “executive agency” in 5 U.S.C.
       § 105 (1988), by virtue of its exclusion from the definition of “independent
       establishment” in 5 U.S.C. § 104 (1988). It is a unique entity.

982 F.2d at 519 (emphasis added). Accordingly, since Oslowski challenges the actions

of the Postal Service, we cannot agree that he was entitled to an individual right of

action or IRA.

       Because Postal Service employees cannot appeal alleged whistleblower

violations directly to the board under the IRA provisions, the Board cannot entertain




                                          5
Oslowski’s claims absent some other, independent basis for jurisdiction. See Booker,

982 F.2d at 519. Here, however, no such independent ground exists, as discussed

above.

      Oslowski further alleges that the Board failed to take into account his status as a

member of a bargaining unit that had access to a negotiated grievance procedure. As

we explained in Mays v. United States Postal Service, “[t]he grievance procedure and

appeal to the board are simply two procedural avenues available to [preference eligible

Postal Service employees] to vindicate the same underlying cause of action.” 995 F.2d

1056, 1060 (Fed. Cir. 1993). Oslowski’s bargaining unit status thus cannot establish

Board jurisdiction. In addition, no evidence of record suggests that Oslowski ever filed a

grievance.

         Finally, even if the Postal Service’s actions could somehow qualify for Board

jurisdiction, we note that Oslowski’s appeal is twenty-some years out of time. All of the

agency actions complained of in this appeal took place in 1977, long after the Board’s

thirty-day limitation for appealing adverse agency actions.

         Because we agree that the Board lacks jurisdiction, we affirm the Board’s

decision dismissing Oslowski’s appeal.

                                      AFFIRMED.




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