                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2007-3063



                                MICHAEL P. RIVOIRE,

                                                             Petitioner,


                                           v.


                         UNITED STATES POSTAL SERVICE,

                                                             Respondent.


      Michael P. Rivoire, of Ham Lake, Minnesota, pro se.

       Michelle A. Windmueller, Attorney Appellate Division, United States Postal
Service, of Washington, DC, for respondent. With him on the brief were Peter D.
Keisler, Assistant Attorney General, Commerical Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, and Lori J. Dym, Chief Counsel,
Appellant Division, United States Postal Service, of Washington, DC.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-3063

                                MICHAEL P. RIVOIRE,

                                                      Petitioner,

                                           v.

                         UNITED STATES POSTAL SERVICE,

                                                      Respondent.

                           __________________________

                               DECIDED: July 16, 2007
                           __________________________


Before LOURIE, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Michael P. Rivoire (“Rivoire”) seeks review of a final decision of the Merit

Systems Protection Board (“Board”), sustaining the decision of the United States Postal

Service (“USPS” or “agency”) to remove him from his position based on charges of (1)

engaging in outside employment while in sick leave status, and (2) unauthorized

absence from his work location. Rivoire v. USPS, No. CH0752060080-I-1 (M.S.P.B.

Oct. 10, 2006) (“Final Decision”). We affirm.

      Under 5 U.S.C. § 7703(c), “[o]ur scope of review in an appeal from a decision of

the Board is limited. Specifically, we must affirm the Board’s decision unless we find it

to be 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.” Abell v. Dep’t of the Navy, 343 F.3d

1378, 1382-83 (Fed. Cir. 2003). “The petitioner bears the burden of establishing error in

the Board’s decision.” Harris v. DVA, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

      On the first charge, it is undisputed that Rivoire worked a part-time shift at his

second job with the Transportation Security Administration (“TSA”) without prior

approval on multiple days in which he also took sick leave from the USPS. In his

petition for review in this court, Rivoire argues that because his hours at TSA did not

overlap with his scheduled USPS hours, he was not “in” sick leave status. We disagree.

      Section 513.312 of the USPS’s Employee and Labor Relations Manual (“ELM”)

provides that “[a]n employee who is in sick leave status may not engage in any gainful

employment unless prior approval has been granted by appropriate authority.” The

USPS has interpreted this regulation as prohibiting outside employment during any day

for which an employee has taken sick leave unless the USPS grants such permission.

See Gray v. USPS, 97 M.S.P.R. 617, 620-21 (2004) (sustaining agency’s removal

decision where “[the employee’s] hours at his second job did not overlap with his tour of

duty at the agency” because he “was required to obtain prior approval before working at

his second job for the three dates [at issue]”), aff’d, No. 05-3074, 2005 WL 1368093

(Fed. Cir. June 9, 2005).     Because ELM § 513.312 is one of the USPS’s own

regulations, see 39 C.F.R. § 211.2(a)(2), and because the USPS’s interpretation is

neither plainly erroneous nor inconsistent with the regulation, we defer to its

intepretation. Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1363-

64 (Fed. Cir. 2005) (“[I]t is well settled that an agency's interpretation of its own

regulations is entitled to broad deference from the courts. . . . Thus, as the Supreme



2007-3063                               2
Court has explained, the agency’s construction of its own regulations is ‘of controlling

weight unless it is plainly erroneous or inconsistent with the regulation.’” (quoting

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). As for Rivoire’s

reliance on Dumont v. Veterans Administration, 6 M.S.P.R. 284 (1981), the Board

correctly noted that such reliance is misplaced. See Final Decision, slip op. at 6 n.4.

Dumont addressed a different agency’s interpretation of a different provision with

different language.

      As to the second charge, we find substantial evidence to support the Board’s

determination regarding Rivoire’s unauthorized absences from his worksite, including

Rivoire’s own admissions. For that reason, and because it is undisputed that Rivoire

violated ELM § 513.312 as interpreted by the USPS, we affirm the Board’s final

decision.

                                        COSTS

      No costs.




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