             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


                                         05-3323



                                STEPHEN D. FREEMAN,

                                                      Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.



                           __________________________

                           DECIDED: May 12, 2006
                           __________________________



Before MICHEL, Chief Judge, NEWMAN and RADER, Circuit Judges.

NEWMAN, Circuit Judge.




      Stephen D. Freeman petitions for review of the decision of the Merit Systems

Protection Board, Docket No. SF0752040604-I-1, dismissing his appeal for lack of

jurisdiction. We affirm the decision of the Board.
                                      BACKGROUND

       Mr. Freeman was removed from his position of Criminal Investigator in the Los

Angeles office of the Office of the Inspector General of the U.S. Postal Service for leaving a

threatening message on his supervisor's voicemail. He disagreed with the agency's

assessment that the message represented a threat and argued that even if it did, mitigating

circumstances such as his depression and recent divorce mandated a less severe action

than removal.

       When Mr. Freeman attempted to appeal to the Board, the government moved for

dismissal for lack of jurisdiction. The government argued that, as a non-preference eligible

employee of the Postal Service, Mr. Freeman could appeal to the Board only if he were a

supervisory or management employee, and he was not. Mr. Freeman argued that his

duties as a criminal investigator were supervisory in nature, and that the Board therefore

had jurisdiction over his removal. The Board granted the government's motion to dismiss,

leading to this appeal.

                                       DISCUSSION

       The parties agree that Mr. Freeman is not a preference eligible employee. The

Board's jurisdiction over Postal Service employees who are not preference eligible is limited

to supervisory or management employees or those engaged in personnel work. 39 U.S.C.

§1005(a)(4)(A); Waldau v. M.S.P.B., 19 F.3d 1395 (Fed. Cir. 1994). Mr. Freeman argues

that his duties make him a supervisory or management employee; he does not allege that

he was engaged in personnel work.

       The Board defined a management employee as "one who represents management's

interests by taking or recommending discretionary actions that control or implement policies


05-3323                                       2
of the employer," citing Strope v. U.S. Postal Service, 71 M.S.P.R. 429, 436 (1996). Mr.

Freeman argues that his duties are within this definition, since "the purpose of the Office of

the Inspector General is to enforce and influence the policies of management." Petitioner's

Informal Brief at 4. While that may be correct, the overall mission of an organization does

not confer management status on every employee in that organization. Mr. Freeman, as a

criminal investigator, identified no activity or authority within the scope of management as

defined by the National Labor Relations Act. See National Labor Relations Board v.

Yeshiva University, 444 U.S. 672, 683 (1980).

       Mr. Freeman argues that he exercises discretion in his investigations and represents

management interests when investigating crimes and wrongdoing within the postal system.

He also argues that he is entitled to appeal to the Board because he is in fact a supervisor,

although he did not raise that argument before the Board. Reviewing Mr. Freeman's

description of his duties as a criminal investigator, he does not assert that he supervises

other criminal investigators or anyone else in the OIG. Instead, he states that the results of

his investigations frequently result in disciplinary action against other employees of the

Postal Service and thus should be deemed supervisory action. However, Mr. Freeman

concedes, in straightforward terms, that "Petitioner and similarly situated investigators have

no independent authority to impose discipline or even suggest the level of discipline

appropriate for the circumstances," Petitioner's Informal Brief at 3. As noted in National

Labor Relations Board v. Bell Aerospace, 416 U.S. 267, 268 n.19 (1974), the employee's

actual job responsibilities control whether he is "managerial." See Bolton v. Merit Systems

Protection Board, 154 F.3d 1313, 1318 (Fed. Cir. 1998).




05-3323                                       3
       No error has been shown in the ruling that Mr. Freeman's role in gathering data and

information upon which supervisory decisions will be made by others does not make him a

supervisor. The Board correctly held that his position as a criminal investigator does not

qualify as a management or supervisory employee of the Postal Service.

       Since none of the conditions for Board jurisdiction have been met, the Board

correctly dismissed his appeal for lack of jurisdiction.




05-3323                                       4
