                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID SHU,                                      DOCKET NUMBER
                         Appellant,                  SF-0752-14-0011-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 23, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           David Shu, Santa Maria, California, pro se.

           Kristen Walker, Long Beach, California, 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 of his placement in an emergency off-duty status 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or 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         The appellant is a full-time Letter Carrier at the agency’s Santa Maria Post
     Office in Santa Maria, California. 2 Initial Appeal File (IAF), Tab 12 at 39. On
     September 27, 2013, the agency placed the appellant in an emergency off-duty
     status without pay for failing to report that he was involved in a motor vehicle
     accident with a privately-owned vehicle on September 21, 2013, while performing
     his duties. IAF, Tab 11 at 30. The appellant filed a Board appeal challenging his
     emergency placement. IAF, Tab 1. The appellant claimed that there had been no
     accident and asserted that the agency committed prohibited personnel practices
     and violated merit system principles by placing him in an emergency off-duty


     2
       The appellant initially worked for the agency as a part-time flexible Letter Carrier at
     the Woodland Hills, California Post Office, starting on March 23, 2002. See Shu v. U.S.
     Postal Service, MSPB Docket No. SF-0353-11-0065-B-1, Initial Appeal File (B-1 IAF),
     Tab 41 at 2. He suffered a compensable injury on September 22, 2003, following which
     he was absent from work, and the agency removed him based on a charge of Irregular
     Attendance/Absent Without Leave effective December 12, 2003. Id. at 2, 7. He made a
     request for reinstatement on March 1, 2009, id. at 6, and he returned to duty in his
     position in Santa Maria on November 6, 2010, id. at 7.
                                                                                          3

     status. Id. at 5. In particular, he alleged that the action was taken to retaliate
     against him for filing a restoration appeal. 3 Id. He did not request a hearing. Id.
     at 2.
¶3           The administrative judge issued an acknowledgement order in which he
     notified the appellant of the limited circumstances in which U.S. Postal Service
     employees may appeal adverse actions to the Board and directed the appellant to
     file evidence and/or argument on the jurisdictional issue.          IAF, Tab 2.     In
     response, the appellant alleged that the Board has jurisdiction over this appeal
     pursuant to 5 C.F.R. § 353.304(a) because the agency failed to return him to duty
     following a leave of absence and his placement in an off-duty status is a
     “continuing violation of [his] restoration right[s].” IAF, Tab 8 at 4-5, Tab 13 at
     4-5.
¶4           The administrative judge then issued an order notifying the appellant of the
     requirements for establishing Board jurisdiction over a restoration appeal and
     directed the appellant to file evidence and argument to prove that this action is
     within the Board’s jurisdiction.     IAF, Tab 14 at 10-13, 20.       In response, the
     appellant alleged that the Board has jurisdiction over this appeal because his
     emergency placement is related to his “failure to restore” claim and based on the
     same underlying injury. IAF, Tab 16 at 4. He also asserted that the agency did
     not properly restore him in 2010 and reiterated his allegation that his emergency
     placement is a continuing violation of his restoration rights. IAF, Tab 18 at 6.


     3
        Shortly before his return to duty on November 6, 2010, the appellant filed a
     restoration appeal with the Board. Shu v. U.S. Postal Service, MSPB Docket No.
     SF-0353-11-0065-I-1, Initial Appeal File (I-1 IAF), Tab 1. The appellant’s restoration
     appeal was dismissed and remanded for further proceedings twice, most recently on
     September 6, 2013. I-1 IAF, Tab 22; B-1 IAF, Tabs 1, 41; Shu v. U.S. Postal Service,
     MSPB Docket No. SF-0353-11-0065-B-2, Initial Appeal File (B-2 IAF), Tab 1. On
     September 25, 2014, the administrative judge issued an initial decision in that appeal,
     finding that the agency’s delay in restoring the appellant to duty between March 1,
     2009, and November 6, 2010, was tantamount to a denial of restoration. B-2 IAF, Tab
     40.
                                                                                       4

¶5         The administrative judge issued another order in which he again advised the
     appellant of his burden of establishing jurisdiction. IAF, Tab 27. In response,
     the appellant reiterated his allegation that the Board has jurisdiction over this
     appeal because his emergency placement arises out of an improper restoration in
     2010. IAF, Tab 28 at 4-5. He also asserted a claim of disability discrimination.
     Id. at 5-6.
¶6         Based on the parties’ submissions, the administrative judge issued an initial
     decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 32, Initial
     Decision (ID) at 1, 9-10. More specifically, the administrative judge found that
     the appellant failed to nonfriviolously allege Board jurisdiction over the appeal of
     his indefinite suspension as an adverse action. ID at 6. The administrative judge
     also found that the appellant failed to nonfrivolously allege Board jurisdiction
     over his emergency placement and/or claims of an indefinite suspension based on
     his restoration rights. ID at 9. The administrative judge found that, because the
     appellant has not raised an otherwise appealable action, the Board has no
     jurisdiction to address his allegations of unlawful discrimination, retaliation,
     and/or prohibited personnel practices. ID at 9-10.
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response to the petition for review. PFR File,
     Tab 3. The appellant has filed a reply to the agency’s response, as well as a
     supplement to his reply. PFR File, Tabs 4-5.

                                        ANALYSIS
     The administrative judge correctly found that the Board lacks jurisdiction over
     this appeal as an adverse action appeal.
¶8         The Board’s jurisdiction is not plenary; it is limited to those matters over
     which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
     Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant must
     prove by preponderant evidence that the Board has jurisdiction over his appeal.
     5 C.F.R. § 1201.56(a)(2)(i). On review the appellant does not challenge, and we
                                                                                        5

      find no reason to disturb, the administrative judge’s finding that the Board does
      not have jurisdiction over the appellant’s indefinite suspension as an adverse
      action.    See generally PFR File, Tab 1; ID at 6.      For a U.S. Postal Service
      employee to appeal an adverse action under 5 U.S.C. chapter 75, he must: (1) be
      a preference eligible, a management or supervisory employee, or an employee
      engaged in personnel work in other than a purely nonconfidential clerical
      capacity; and (2) have completed 1 year of current continuous service in the same
      or similar positions. See 39 U.S.C. § 1005(a); 5 U.S.C. § 7511(a)(1)(B)(ii); Clark
      v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012).          In this case, it is
      undisputed that the appellant is not a preference eligible, supervisor, or manager,
      nor does he engage in personnel work in other than a purely nonconfidential
      clerical capacity. Therefore, the appellant does not have the right to challenge his
      emergency placement before the Board as an adverse action under chapter 75.

      The administrative judge correctly found that the Board lacks jurisdiction over
      this appeal as a restoration appeal.
¶9          Under the authority of 5 U.S.C. § 8151(b), the Office of Personnel
      Management issued regulations governing the restoration rights of employees
      after recovery from a compensable injury. See 5 C.F.R. § 353.301. The Board’s
      jurisdiction in restoration cases is set forth at 5 C.F.R. § 353.304, which provides
      individuals the right to appeal to the Board an agency’s failure to restore,
      improper restoration, or failure to return an employee following a leave of
      absence.
¶10         In addressing whether the Board has jurisdiction over this appeal as a
      restoration appeal, the administrative judge noted that there is nothing in the
      record to indicate that the appellant was absent from duty or suffered a
      compensable injury following his return to duty on November 6, 2010. ID at 8
      (citing IAF, Tabs 1, 8, 13, 28). As for the appellant’s claim that the Board has
      jurisdiction over his emergency placement based on his 2003 workplace injury
      and return to full duty on November 6, 2010, the administrative judge found that
                                                                                            6

      the record reflects that the emergency placement was based on an unreported
      September 21, 2013 motor vehicle accident in a government vehicle, a matter
      substantially unrelated to a compensable injury. ID at 8-9. In that regard, the
      administrative judge noted that the appellant does not appear to dispute either that
      he was aware of the claimed collision on September 21, 2013, 4 or that he twice
      met the U.S. Postal Service customer who reported a collision involving his
      personal vehicle and a government vehicle to discuss the claimed collision. ID at
      9 (citing IAF, Tab 11, Subtab 4I). The administrative judge further found that, to
      the extent that the appellant is attempting to argue that the Board has jurisdiction
      over this appeal because he was placed in an off-duty status based on his 2003
      workplace injury, the appellant’s submissions reflect that his emergency
      placement was based on the U.S. Postal Service customer’s report of a 2013
      vehicle collision and the appellant’s failure to report the incident, a cause that is
      substantially unrelated to the appellant’s compensable injury. ID at 9. Therefore,
      the administrative judge found the appellant failed to nonfrivolously allege that
      the Board has jurisdiction over this appeal based on his restoration rights. ID at
      9.
¶11         The appellant challenges this finding on review, reiterating his argument
      below that the Board has jurisdiction over this appeal because his emergency
      placement was part of an ongoing effort by the agency to deny his restoration
      rights. PFR File, Tab 1 at 5-12. This argument is essentially mere disagreement
      with the administrative judge’s explained finding that the appellant’s emergency
      placement was based on the appellant’s failure to report that he was involved in a

      4
        The appellant challenges this statement on review, arguing that he “made clear that
      there was no collision on September 21, 2013[,] and he was NOT aware of a claimed
      collision on September 21, 2013.” PFR File, Tab 1 at 12 (capitalization as in original).
      The appellant has apparently misconstrued the administrative judge’s statement.
      Although the appellant denied that a collision occurred, he did not dispute that he was
      aware of a “traffic incident” between himself and a Postal customer on September 21,
      2013, and that the customer claimed that the incident involved a collision. See IAF,
      Tab 13 at 4. Thus, we find the administrative judge’s statement accurate.
                                                                                         7

      motor vehicle accident with a privately-owned vehicle on September 21, 2013, a
      matter unrelated to the appellant’s compensable injury. ID at 8-9. As such, this
      argument provides no basis for disturbing the administrative judge’s finding that
      the Board does not have jurisdiction over this appeal based on the appellant’s
      restoration rights. See Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (a petitioner’s mere disagreement with issues
      already raised and properly resolved by the administrative judge below does not
      establish a basis for review).

      Allegation of judicial bias.
¶12         The appellant also raises an apparent claim of judicial bias on review. PFR
      File, Tab 1 at 15. He alleges that “every [initial decision] that [the administrative
      judge] has issued and will issue in [the] [a]ppellant’s appeals . . . [will be] based
      on his personal preference in favor of the agency.” Id.
¶13         In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if his comments or actions evidence
      a deep-seated favoritism or antagonism that would make fair judgment
      impossible. See, e.g., Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15
      (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). The appellant’s allegations on
      review, which relate solely to the administrative judge’s rulings and not to any
      extrajudicial conduct by the administrative judge, neither overcome the
      presumption of honesty and integrity that accompanies an administrative judge
      nor establish that the administrative judge showed a deep-seated favoritism or
      antagonism that would make fair judgment impossible.
                                                                                        8

      Documents submitted on review
¶14        The appellant submits several documents with his petition for review. PFR
      File, Tab 1 at 17-25. The Board generally will not consider evidence submitted
      for the first time on review absent a showing that the documents and the
      information contained in the documents were unavailable before the record closed
      despite due diligence.   Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
      (1980). The Board will not grant a petition for review based on new evidence
      absent a showing that it is of sufficient weight to warrant an outcome different
      from that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R.
      345, 349 (1980). Although some of the documents submitted on review are new,
      in that they were not available before the record closed below, 5 they are not
      material to the issue in this appeal, i.e., whether the administrative judge
      correctly dismissed the appeal for lack of jurisdiction, and, thus, provide no basis
      to grant the appellant’s petition for review. See Russo, 3 M.S.P.R. at 349.

                      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
      held that normally it does not have the authority to waive this statutory deadline

      5
        The record closed below on January 28, 2014. See IAF, Tab 27 at 6. Two of the
      documents the appellant submits on review postdate the close of the record. See PFR
      File, Tab 1 at 17-19.
                                                                                  9

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.
