                   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


                                        04-3463

                                    CURTIS WEBB,

                                                                       Petitioner,

                                            v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                                       Respondent.

                           __________________________

                           DECIDED: May 9, 2005
                           __________________________


PER CURIAM.


      Curtis Webb seeks review of the final decision of the Merit Systems Protection

Board (“Board”) dismissing his appeal.           Webb v. United States Postal Serv.,

No. DA07520348-I-1 (Aug. 8, 2004). We affirm.

                                             I

      Mr. Webb was removed from his position in the U.S. Postal Service (“agency”) as

mail handler for alleged violation of a last chance settlement agreement. He appealed

his removal to the Board. The Administrative Judge (“AJ”) assigned to his case issued

an Acknowledgement Order in which the AJ noted that the Board might lack authority to

hear his case, because his appeal appeared to be untimely and because the terms of

the last chance settlement agreement provided that he waived his appeal rights if the

settlement agreement was broken by Mr. Webb.
       The agency replied that it considered Mr. Webb’s appeal to be untimely and that

he had broken the settlement agreement. The agency also asserted that regardless of

the timeliness and settlement agreement issues, the Board lacked jurisdiction to hear

his appeal because he did not fall in the narrow category of postal workers who have

appeal rights to the Board.

       The AJ then issued a show cause order to Mr. Webb, telling him that he carried

the burden of establishing Board authority to hear his case. The AJ explained that only

a narrow category of postal workers could appeal to the Board, and the AJ afforded

Mr. Webb the opportunity to show that he was either a preference eligible, a manager or

supervisor, or a personnel official in his job at the post office.     Had Mr. Webb

established that he was any one of those kinds of employees, the AJ would have

considered his case further. Mr. Webb, however, did not reply to the show cause order.

       Because the agency had asserted facts showing that Mr. Webb was not a

preference eligible, a manager, supervisor or personnel employee, and because

Mr. Webb had produced no contrary evidence, the AJ entered an initial decision

dismissing the appeal on the ground that Mr. Webb did not occupy a postal job that

gave him appeal rights. When the full Board denied Mr. Webb’s petition for review, the

initial decision became the final decision of the Board. Mr. Webb timely sought review

in this court.

                                           II

       We must affirm the final decision of the Board unless we determine that it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.




04-3463                                2
Where the final decision of the Board rests on findings of fact, those findings must be

supported by substantial evidence.

       In this case, the Board correctly noted that it has limited authority to hear appeals

brought by postal employees. Preference eligible employees have appeal rights, but

here Mr. Webb made no showing to overcome the agency’s showing that he is not a

preference eligible employee. Substantial evidence supports the Board’s decision that

Mr. Webb cannot sustain Board jurisdiction as a preference eligible.

       As for the other categories of postal workers who can appeal to the Board, a

clear line is drawn between employees who are represented by a union and those

employees in management, supervisory and personnel work who are not. Here, again

the agency showed that Mr. Webb did not work as a manager, supervisor or personnel

employee, and the record shows that he sought to pursue his rights under the union’s

collective bargaining agreement. Consequently, there is substantial evidence that Mr.

Webb is not a manager, supervisor, or personnel employee. Therefore, the Board was

correct in concluding that Mr. Webb could not seek vindication for his removal before

the Board. The Board’s decision correctly applied the law to the facts of the case. We

therefore affirm.




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