                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FELICIA N. JONES,                               DOCKET NUMBER
                    Appellant,                       DA-4324-16-0063-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: July 21, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Felicia N. Jones, Houston, Texas, pro se.

           Nadalynn F. Hamilton, Esquire, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction her appeal, in which she alleged such actions as
     termination and denial of restoration. 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 regulation

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the administrative
     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, 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 served several temporary appointments with the agency as a
     casual employee between December 1996 and October 1999. Initial Appeal File
     (IAF), Tab 9 at 28-67. By letter dated December 10, 2014, the agency notified
     the appellant that it had learned of a cyber-intrusion into its records and that it
     was possible that some of her personal information related to the processing of an
     Office   of   Workers’   Compensation     Programs    (OWCP)      claim    had   been
     compromised.     IAF, Tab 2 at 129.     Thereafter, the appellant filed an equal
     employment opportunity complaint and a civil action in the U.S. District Court
     for the Southern District of Texas.     Id. at 18-127.   On October 21, 2015, the
     appellant filed an appeal with the Board, which was returned to her because she
     failed to identify the action she was appealing. IAF, Tab 1.
¶3        On October 28, 2015, the appellant refiled her appeal with the Board. IAF,
     Tab 2. She alleged that the agency terminated her in retaliation for filing a prior
     complaint alleging discrimination or harassment.         Id. at 1-2.   The appellant
     appeared to dispute a statement by the agency claiming that she was not
     terminated, her term of appointment just expired. Id. at 2. The appellant also
                                                                                             3

     alleged that the agency discriminated against her by overlooking her military
     status and by “leaving it out of the Archives for a higher pay grade.” Id. The
     appellant attached several documents to her appeal and she claimed to be a
     preference eligible, but she did not include any documentation showing that she is
     a veteran or that she is entitled to veterans’ preference.
¶4         The administrative judge issued orders regarding the appellant’s burden to
     prove Board jurisdiction over her claims. IAF, Tabs 6, 12, 15. Specifically, she
     advised the appellant regarding how to establish jurisdiction over claims that the
     agency violated the Uniformed Services Employment and Reemployment Rights
     Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA), retaliated against
     her for whistleblowing or other protected activity, removed her pursuant to
     chapter 75 of title 5, and/or failed to restore her to duty following an on-the-job
     injury. Id. Having informed the appellant of her burden of proving jurisdiction
     under the criteria applicable to the claims identified on appeal, the administrative
     judge ordered the appellant to show cause why her appeal should not be dismissed
     for lack of jurisdiction.   IAF, Tab 6 at 7, Tab 12 at 6‑7, Tab 15 at 12.            After
     considering   the   appellant’s   responses    to   the   jurisdictional   orders,     the
     administrative judge issued an initial decision that dismissed the appeal for lack
     of jurisdiction based on the written record, finding that the appellant failed to
     make a nonfrivolous allegation of jurisdiction.           IAF, Tab 21 at 11, Initial
     Decision (ID).
¶5         The appellant has filed a petition for review arguing that the administrative
     judge erred by failing to decide the merits of her appeal and by not considering
     her motion to initiate an addendum proceeding for consequential or compensatory
     damages. Petition for Review (PFR) File, Tab 1 at 3-4. 2 Without providing any



     2
       The appellant filed a petition for review with the Board on April 18, 2016, before the
     initial decision was issued on April 21, 2016. PFR File, Tab 1; ID. After the initial
     decision was issued, the appellant informed the Clerk of the Board that her April 18,
                                                                                       4

     specifics, the appellant claims harmful error.       Id. at 2.   She states that the
     administrative judge based her decision on erroneous interpretations of statutes
     and regulations. Id. The appellant also states that there is new and material,
     previously unavailable evidence that the Board has jurisdiction over an adverse
     action based on the denial, suspension, or revocation of a security clearance, but
     she fails to submit any evidence showing that the agency subjected her to this
     type of adverse action.     PFR File, Tab 1 at 2, Tab 7 at 3.       The agency has
     responded to the petition for review, and the appellant has replied. 3 PFR File,
     Tabs 5, 7.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6         The Board’s jurisdiction 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). An appellant has the burden
     of proving by preponderant evidence that her appeal is within the Board’s
     jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). In this case, the administrative judge
     provided the appellant with explicit information on what is required to establish
     an appealable jurisdictional issue, and we agree with the administrative judge’s
     finding that the appellant’s submissions were insufficient to meet her
     jurisdictional burden regarding the claims that she raised on appeal.           See
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643‑44 (Fed. Cir.
     1985) (finding that an appellant must receive explicit information on what is
     required to establish an appealable jurisdictional issue).
¶7         We find that the appellant’s arguments on review present no basis to disturb
     the initial decision. In particular, we find that the administrative judge correctly

     2016 correspondence should be considered as her petition for review of the initial
     decision dismissing her appeal for lack of jurisdiction. PFR File, Tabs 2‑3.
     3
       After the record closed on review, the appellant filed a “Motion for Leave to File
     Motion for Stay Request.” PFR File, Tab 8. Because the contents of her motion are
     immaterial to the outcome of the appeal, we DENY her motion.
                                                                                      5

     determined that the Board lacks jurisdiction over the appeal as an adverse action
     or a termination under 5 U.S.C. §§ 7511‑7513, given that the appellant failed to
     provide evidence or nonfrivolously allege that she is a preference eligible or that
     she met the statutory definition of an “employee.” ID at 6‑8. The administrative
     judge also properly determined that the Board lacks jurisdiction over this case as
     a restoration appeal because the appellant failed to nonfrivolously allege that the
     termination of her temporary appointment was the result of her compensable
     injury. ID at 8‑9. Further, the administrative judge correctly decided that the
     appeal is outside the Board’s purview as an appeal under USERRA because the
     appellant failed to nonfrivolously allege that she had any active duty military
     service that would entitle her to file such an appeal.         ID at 9‑10.     The
     administrative judge, moreover, properly concluded that the appellant did not
     raise any other nonfrivolous allegation of Board jurisdiction over her appeal. ID
     at 10‑11.
¶8        In addition, the appellant’s arguments concerning the merits of her claims
     on appeal, and her request that the Board consider her motion to initiate an
     addendum proceeding for consequential or compensatory damages, do not address
     the dispositive jurisdictional issues before the Board on review. PFR File, Tab 1
     at 3-4; see Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 7 (2012)
     (finding that the appellant’s arguments on the merits of her appeal were not
     relevant to the jurisdictional question); Sanchez v. Department of Homeland
     Security, 116 M.S.P.R. 183, ¶ 7 (2010) (finding that, if an appeal is dismissed for
     lack of jurisdiction, the Board is without authority to order any relief and no
     order exists for it to enforce). Further, absent an appealable underlying action,
     the Board is without jurisdiction over the appellant’s claims of harmful error.
     Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012).
¶9        Finally, we note that the appellant appears to raise new claims for the first
     time on review.     For example, she references the Board’s jurisdiction to
                                                                                            6

      adjudicate claims arising under the Veterans Employment Opportunities Act of
      1998 and the Board’s jurisdiction over a final decision by the Office of Personnel
      Management regarding retirement annuities. PFR File, Tab 1 at 2-3. However,
      she provides insufficient information for us to address these claims. Weaver v.
      Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (observing that, before the
      Board will undertake a complete review of the record, the petitioning party must
      explain why the challenged factual determination is incorrect, and identify the
      specific evidence in the record that demonstrates the error). 4
¶10         Accordingly, we find that the administrative judge properly dismissed this
      appeal for lack of jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      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 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
      4
       The appellant may, if she wishes, raise these new claims in the first instance with the
      Board’s regional office. We make no finding on whether, assuming that she were to file
      new appeals on these claims, they would or would not be deemed timely filed.
                                                                                  7

title 5 of the U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
