                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HOWARD ROGERS,                                  DOCKET NUMBER
                 Appellant,                          AT-0353-14-0081-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 10, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Howard Rogers, Cheraw, South Carolina, pro se.

           Janelle M. Sherlock, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to 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).

                                      BACKGROUND
¶2         On October 1, 2009, the appellant accepted a rehabilitation modified
     position as a full-time PS-6 Mail Processing Clerk at the Cheraw, South Carolina
     Post Office. 2 Initial Appeal File (IAF), Tab 4 at 36-37, 44. On February 24,
     2010, the agency notified him that his position would be abolished pursuant to a
     “Function 4 Review,” that he would be involuntarily reassigned to a vacant
     full-time position at the Post Office in Dillon, South Carolina, and that the agency
     would provide moving expenses, mileage, per diem, and reimbursement for
     movement of household goods. 3      Id. at 50-51.    In the alternative, the agency
     offered the appellant the option of a PS-6 part-time flexible position at his current
     duty station, which he accepted effective July 17, 2010. Id. at 50-51, 55.


     2
       The appellant sustained a traumatic workplace injury in 1995, and the Office of
     Workers’ Compensation Programs accepted his claim for cervical subluxation on or
     about June 3, 1996. IAF, Tab 4 at 19-26.
     3
      The agency explained that Dillon is located about 35 miles away from Cheraw. IAF,
     Tab 4 at 9 n.8. According to Google maps, however, it appears there are approximately
     41.6 miles between the two towns.
                                                                                        3

¶3            Over 3 years later, the appellant filed a grievance apparently challenging
     the possibility that, as a part-time flexible employee, his hours could be reduced.
     See IAF, Tab 1 at 4; see also IAF, Tab 4 at 8. On August 28, 2013, the union
     withdrew the grievance as part of a Step 2 settlement agreement. IAF, Tab 4
     at 62.     The appellant subsequently filed an appeal with the Board, alleging
     improper restoration and involuntary resignation occurring on the date of the
     settlement agreement, August 28, 2013. IAF, Tab 1 at 3.
¶4            The agency moved to dismiss the appeal for lack of jurisdiction, noting that
     the basis of the appeal was unclear, but that no possible grounds existed to find
     Board jurisdiction. IAF, Tab 4 at 6-11. Specifically, the agency contended that:
     (1) to the extent the appeal pertained to the possibility that the appellant’s hours
     might be reduced, such is not an appealable adverse action because he was a
     part-time flexible employee; (2) to the extent the appeal pertained to the
     appellant’s reassignment to a part-time flexible position, such action was not
     appealable as it was a voluntary action; (3) to the extent the appellant alleged
     improper restoration, his claim failed because he had not been out of work due to
     a compensable injury and, in any event, he was given the option of a full-time
     regular position within the local commuting area, but chose the part-time flexible
     position; and (4) the appeal was untimely filed. Id. at 8-11.
¶5            The administrative judge subsequently ordered the appellant to carefully
     review the agency’s motion to dismiss and to fully respond to its contentions on
     jurisdiction.    IAF, Tab 5.    In his response, the appellant stated, among other
     things, that he had a compensable injury; that the full-time regular position he
     was offered was outside of the installation, contrary to the collective bargaining
     agreement; and that he had been subject to an adverse personnel action because,
     working as a part-time flexible, he had to use sick and annual leave to “make up
     forty hours in a work week.” IAF, Tab 6 at 1-4.
¶6            In a January 26, 2014 initial decision, the administrative judge dismissed
     the appeal for lack of jurisdiction on the grounds that the appellant’s
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     reassignment was voluntary. IAF, Tab 7, Initial Decision (ID). Regarding the
     appellant’s claims of disability discrimination, the administrative judge explained
     that, absent an otherwise appealable action, allegations of discrimination are
     insufficient to bring an appeal within the Board’s jurisdiction. See ID.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        The appellant petitioned for review of the initial decision.      Petition for
     Review (PFR) File, Tab 1. He appears to argue that the Board has jurisdiction
     over his claim because an employee’s perception of a prohibited personnel
     practice has a negative effect on organizational effectiveness. Id. at 1-2. Further,
     he appears to argue that the Board should review an unspecified regulation. Id.
     at 2-3. The agency opposed the petition for review on the grounds the appellant
     failed to state any new or material facts or any allegation of judicial error, and
     failed to show any evidence of a prohibited personnel practice. PFR File, Tab 3.
     In reply to the agency’s response, the appellant argues that the agency has
     violated the Rehabilitation Act; that although the agency purportedly abolished
     the full-time clerk position, he is still in Cheraw working 40 hours per week plus
     overtime; that he has lost his scheduled day off and holiday pay; and that his
     driving restriction would not have allowed him to commute to Dillon. PFR File,
     Tab 4.
¶8        On review, the appellant fails to show that his newly-raised arguments
     regarding an alleged prohibited personnel practice or an alleged agency violation
     of the Rehabilitation Act are based upon new and material evidence that was
     previously unavailable to him below despite his due diligence. See PFR File,
     Tabs 1, 4. Accordingly, his arguments need not be considered by the Board. See
     Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v.
     U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
¶9        Further, the appellant does not challenge, and we discern no reason to
     disturb, the administrative judge’s finding that the appellant’s acceptance of the
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      part-time flexible position in Cheraw was voluntary. See, e.g., Smitka v. U.S.
      Postal Service, 66 M.S.P.R. 680, 687 (1995) (the mere fact that an employee is
      faced with unpleasant alternatives does not render his choice of one of those
      alternatives involuntary), aff’d, 78 F.3d 605 (Fed. Cir. 1996). As such, the Board
      lacks jurisdiction over his appeal.        See Burgess v. U.S. Postal Service,
      68 M.S.P.R. 469, 473 (1995) (the Board lacks jurisdiction over voluntary
      actions).
¶10         Insofar as the appellant seeks to invoke the Board’s regulation review
      authority, he has failed to provide the requisite information pursuant to 5 C.F.R.
      § 1203.11(b), which requires, inter alia, a citation identifying the regulation being
      challenged, a statement describing in detail the reasons why the regulation would
      require an employee to commit a prohibited personnel practice, specific
      identification of the prohibited personnel practice at issue, and a description of
      the action the requester would like the Board to take. See Burroughs v. Office of
      Personnel Management, 94 M.S.P.R. 315, ¶ 5 (2003), aff’d, 89 F. App’x 699
      (Fed. Cir. 2004).    Accordingly, we deny his possible request for regulation
      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.
      27, 2012). If you choose to file, be very careful to file on time. The court has
                                                                                  6

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
