                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     REGINALD L. BARNETT,                            DOCKET NUMBER
                   Appellant,                        AT-3330-15-0453-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: March 9, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John R. Macon, Memphis, Tennessee, for the appellant.

           Cynthia R. Allen, Memphis, Tennessee, 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 his appeal for lack of Board 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 regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The appellant filed an appeal alleging that the agency violated his rights
     under the Veterans Employment Opportunities Act of 1998 (VEOA) when it
     failed to allow him to compete for a Full-time Regular Mail Handler Position.
     Initial Appeal File (IAF), Tab 1. 2 It is undisputed that the appellant has held the
     position of Part-time Regular Mail Handler since April 2007.          Id. at 27.   In
     September 2013, the appellant submitted an application to the agency requesting
     to be converted to a Full-time Regular Mail Handler position. Id. The agency
     notified the appellant that he was not eligible to be converted to a Full‑time
     Regular Mail Handler because, under the terms of the Memorandum of
     Understanding with the National Postal Mail Handlers Union, only Part-time
     Flexible employees were allowed to convert to Full-time Regular Mail Handler
     positions. Id. at 48.
¶3         The administrative judge found that, because only internal candidates were
     allowed to compete for the positions at issue, the appellant failed to establish that

     2
        The appellant also raised a claim under the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301‑4333) (USERRA).
     IAF, Tab 1 at 3, 9. However, the appellant’s USERRA claim previously was dismissed
     for lack of jurisdiction in Barnett v. U.S. Postal Service, MSPB Docket No. AT-3443-
     14-0844-I-1, Initial Decision (Sept. 3, 2014). Because a petition for review was not
     filed, the initial decision became the Board’s final decision on October 8, 2014.
                                                                                         3

     the agency denied him the opportunity to compete under merit promotion
     procedures for a vacant position for which the agency accepted applications from
     outside its own work force. IAF, Tab 13, Initial Decision (ID) at 4. Thus, the
     administrative judge found that the Board does not have jurisdiction over the
     appellant’s claim under VEOA. Id. The administrative judge further found that,
     even if she were to find that the Board has jurisdiction over the appellant’s VEOA
     claim, VEOA does not grant the Board the authority to address his allegations
     that the agency violated the collective bargaining agreement (CBA) by failing to
     consider him for a Full-time Regular Mail Handler position. Id. Accordingly, the
     administrative judge dismissed the appeal for lack of jurisdiction.
¶4         The appellant has filed a petition for review in which he asserts that the
     administrative judge misinterpreted 5 U.S.C. § 3304(f), the statute that provides
     preference-eligible individuals the right to compete for jobs within the Federal
     workforce. Petition for Review (PFR) File, Tab 1. The appellant argues that
     individuals holding Mail Handler Assistant positions, who were allowed to
     compete for full-time positions, should be considered outside the agency’s
     workforce for VEOA purposes.            Id.   As discussed below, the appellant’s
     arguments on review do not provide a basis for disturbing the initial decision.
¶5         The administrative      judge correctly noted that, to establish Board
     jurisdiction   over   a   “right   to   compete”   VEOA    claim      under   5 U.S.C.
     § 3330a(a)(1)(B), the appellant must: (1) show that he exhausted his remedy with
     the Department of Labor (DOL) and (2) make nonfrivolous allegations that (i) he
     is a veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue
     took place on or after the December 10, 2004 enactment date of the Veterans
     Benefits Improvement Act of 2004, and (iii) the agency denied him the
     opportunity to compete under merit promotion procedures for a vacant position
     for which the agency accepted applications from individuals outside its own
     workforce in violation of 5 U.S.C. § 3304(f)(1).        ID at 3; see Styslinger v.
     Department of the Army, 105 M.S.P.R. 223, ¶ 31 (2007).
                                                                                        4

¶6           The administrative judge found that it was undisputed that the appellant is a
     veteran within the meaning of the statute and that the action at issue took place
     after 2004. ID at 3. The administrative judge found that it was unnecessary to
     resolve the issue of whether the appellant had exhausted his remedies with DOL
     because, even if he had, the record did not reflect that, for the position at issue,
     the agency accepted applications from individuals outside its own workforce. ID
     at 4.
¶7           We agree with the administrative judge’s finding that the agency did not
     accept applications from individuals outside of its own workforce when it filled
     the Full-time Regular Mail Handler positions. Because the agency restricted the
     application process to internal candidates, the administrative judge correctly
     found that the appellant failed to establish that the agency denied him the
     opportunity to compete under merit promotion procedures for a vacant position
     for which the agency accepted applications from individuals outside its
     own workforce.
¶8           The appellant continues to argue that, for VEOA purposes, the Mail Handler
     Assistant Position should be considered outside of the agency’s internal
     workforce because those positions are not career positions within the Federal
     workforce, and they do not receive the same rights and benefits of a Federal
     employee. PFR File, Tab 1. While we have considered the appellant’s arguments
     on review, we discern no reason to substitute our assessment of the record
     evidence for that of the administrative judge.         See Crosby v. U.S. Postal
     Service, 74 M.S.P.R. 98, 105‑06 (1997) (finding no reason to disturb the
     administrative judge’s findings when she considered the evidence as a whole,
     drew appropriate inferences, and made reasoned conclusions); Broughton v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
     Specifically, we agree with the administrative judge’s determination that, while
     the Mail Handler Assistant positions have lesser contractual or other employment
                                                                                       5

     rights, it does not change the fact that the Mail Handler Assistants were a part of
     the agency’s “regular” workforce when they competed for the positions. ID at 4.
¶9         To the extent the appellant also challenges the CBA’s provisions that
     supposedly preclude him from being considered for the Full-time Regular Mail
     Handler position, we agree with the administrative judge that VEOA does not
     grant the Board the authority to address the appellant’s allegations that the agency
     violated the CBA when it failed to consider him for a Full-time Regular Mail
     Handler position.    ID at 4; Ruffin v. Department of the Treasury, 89 M.S.P.R.
     396, ¶ 11 (2001) (explaining that VEOA does not grant the Board authority to
     consider violations of provisions unrelated to veterans’ preference appeals).
     Accordingly, we conclude that the appellant has provided no basis upon which to
     disturb the initial decision.

                      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
                                                                                 6

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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
