                   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
                                          2006-3244

                                    ANDREW B. SMITH,

                                                    Petitioner,

                                               v.

                           UNITED STATES POSTAL SERVICE,

                                                    Respondent.

                             ___________________________

                             DECIDED: November 7, 2006
                             ___________________________


Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

PER CURIAM.

                                          DECISION

       Petitioner Andrew B. Smith seeks review of a decision of the Merit Systems

Protection Board, Docket No. SF-0752-05-0584-I-1, in which the Board dismissed Mr.

Smith’s appeal on the ground that he has effectively refiled an appeal the Board

previously dismissed for lack of jurisdiction. We affirm.

                                       BACKGROUND

       Mr. Smith, a former employee of the United States Postal Service, was removed

from his position in 2002 for failing to follow instructions and failing to operate a forklift in

a safe manner. He filed a timely appeal of his removal to the Merit Systems Protection
Board. The Board, however, dismissed the appeal in December 2003, on the ground

that Mr. Smith had not shown that he was a preference-eligible employee and thus was

not among those Postal Service employees entitled to appeal adverse actions to the

Board pursuant to 5 U.S.C. §§ 2108 and 7511(b)(8). The administrative judge found

that although Mr. Smith served in the Marine Corps between 1980 and 1984, he failed

to show that he satisfied the particular service requirements necessary to satisfy 5

U.S.C. § 2108, which defines the term “preference-eligible employee.”

      In September 2004, the Department of Veterans Affairs (“DVA”) granted in part

Mr. Smith’s request for service connection for a residual head injury scar and left ear

hearing loss.     Although the DVA determined that he had those service-connected

conditions, it determined that he was entitled to a zero percent disability rating. The

DVA then made the disability determination for the residual head injury scar retroactive

to August 2002.

      Following the DVA’s disability decision, Mr. Smith filed a petition for review to the

full Board from the administrative judge’s December 2003 jurisdictional dismissal of his

original Board appeal. He argued that the DVA’s 2004 grant of service connection for

his claimed disabilities, part of which was made retroactive to August 30, 2002,

rendered him a disabled veteran, and thus a preference-eligible employee for purposes

of 5 U.S.C. § 2108. Accordingly, he argued, he should be entitled to litigate the merits

of his removal action before the Board. The full Board denied that petition for review in

December 2004.       Mr. Smith subsequently filed a petition for review of the Board’s

decision with this court, but the petition was dismissed as untimely on March 31, 2005.




2006-3244                                   2
       In a separate proceeding, Mr. Smith’s union, the National Mail Handlers Union,

grieved the removal action on his behalf, and the matter was referred to an arbitrator for

a hearing and decision.     On February 17, 2004, following a hearing, the arbitrator

denied the grievance, finding that Mr. Smith had been removed for just cause.

       On April 22, 2005, Mr. Smith filed the present appeal with the Board, once again

seeking Board review of his December 2002 removal action. In his new appeal, he

again argued that he is a preference-eligible employee, contending that in light of the

DVA’s 2004 disability decision he is a disabled veteran and therefore is entitled to

appeal his removal action to the Board.

       The administrative judge who was assigned to the case dismissed the appeal,

ruling that law-of-the-case principles barred Mr. Smith from relitigating the jurisdictional

determination made in his first appeal, which had long since become final. Mr. Smith

petitioned for review by the full Board. The full Board denied the petition for review,

although it did so on the basis of collateral estoppel rather than law of the case. Mr.

Smith now petitions for review by this court.

                                      DISCUSSION

       In his brief, Mr. Smith provides a detailed account of the complex sequence of

events that led up to this appeal. During the period since his removal in 2002, he has

sought review of that action before the Merit Systems Protection Board (twice), before

the Equal Employment Opportunity Commission (“EEOC”), and before an arbitrator in

the grievance proceeding brought by his union. The grievance proceeding culminated

in an adverse decision on the merits, but the other actions were dismissed. The first

Board proceeding was dismissed because Mr. Smith was not a preference-eligible




2006-3244                                    3
employee at the time that proceeding was brought.          The EEOC proceeding was

dismissed because, according to Mr. Smith, he was advised by EEOC and Board

officials that the proper forum in which to litigate the removal action was the Merit

Systems Protection Board. In light of his persistent efforts to obtain Board review of his

removal action and in light of the DVA’s 2004 decision declaring him a disabled veteran,

Mr. Smith argues that the Board should be directed to reach the merits of his removal

action, either by proceeding with his second appeal or by reopening his first appeal.

      Despite the procedural complexity of this case, the central fact is that the Board

adjudicated Mr. Smith’s status as a non-preference-eligible employee in his first appeal,

which became final in April 2003.       In the present appeal, the Board’s ruled that

principles of collateral estoppel barred him from relitigating that decision. Mr. Smith’s

position, in essence, is that because the DVA has declared him a disabled veteran, and

because the DVA’s disability decision is retroactive in part to August 2002, he should be

deemed to have been a disabled veteran at the time of his removal, and thus be entitled

to appeal his removal to the Merit Systems Protection Board. In effect, Mr. Smith is

asking that collateral estoppel not be applied to bar his second appeal because of the

changed circumstances regarding his status as a preference-eligible employee.

      The problem with Mr. Smith’s argument is that he was not a preference-eligible

employee at the time of his removal and his original appeal. Moreover, a later decision

by the DVA that he was disabled does not provide the Board with jurisdiction over his

appeal, even though the DVA’s September 2004 decision was made effective, for DVA

purposes, as of August 2002. The Board has specifically held that a Postal Service

employee must be determined to qualify as a preference-eligible employee (such as by




2006-3244                                   4
being a disabled veteran) at the time of the agency’s action in order to have appeal

rights to the Board; a subsequent decision by the DVA determining that the employee is

a disabled veteran does not confer jurisdiction on the Board, even if that subsequent

decision is made retroactive or establishes that the employee was in fact disabled at the

time of the agency action under review. Mitchell v. Dep’t of Commerce, 100 M.S.P.R.

415, 419-20 (2005); Pierce v. U.S. Postal Serv., 96 M.S.P.R. 38, 42-43 (2004). That is

because 5 U.S.C. § 2108(2) defines “disabled veteran” as an individual who, among

other requirements, “has established the present existence of a service-connected

disability.” Mr. Smith had not “established the present existence of a service-connected

disability” at the time of his removal. Accordingly, Mr. Smith was not a preference-

eligible employee at the time of his removal, and that fact was not changed by the

DVA’s September 2004 decision. Because the circumstances were not fundamentally

different with respect to the jurisdictional question in 2006 than they were in 2003, the

Board did not err in dismissing his second appeal on collateral estoppel grounds.

Moreover, because the DVA decision does not affect his status retroactively, he is not

entitled to relief from the Board even if his second appeal is not treated as a separate

appeal, but rather as a request to reopen his first appeal.

       We note that Mr. Smith has not been deprived of an opportunity to challenge his

removal. He did so through the remedy frequently invoked by non-preference-eligible

employees in the Postal Service—a grievance processed by his union. That grievance

resulted in an arbitrator’s award holding that his removal was justified. Because of that

adverse administrative decision in a parallel review proceeding, the Board would have

been entitled to invoke collateral estoppel on the merits based on the arbitrator’s award,




2006-3244                                    5
even if the Board had held that collateral estoppel on the jurisdictional issue did not bar

his second appeal and had allowed him to proceed to the merits with his Board appeal.

See Kroeger v. U.S. Postal Serv., 865 F.2d 235, 239 (Fed. Cir. 1988). Accordingly, Mr.

Smith’s claim that it is manifestly unjust to bar him from proceeding with his appeal

before the Board is unpersuasive. We therefore uphold the Board’s decision dismissing

his appeal.




2006-3244                                   6
