                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANDY L. SMITH,                                  DOCKET NUMBER
                         Appellant,                  DA-3330-14-0658-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 14, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Andy L. Smith, Tyler, Texas, pro se.

           Steven E. Coney, 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 this appeal on grounds of adjudicatory efficiency.         For the reasons
     discussed below, we VACATE the initial decision and DISMISS the appeal for
     lack of jurisdiction.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2         In a previously-filed appeal, the initial decision found that the appellant had
     been improperly released by demotion from his competitive level—PS-4 Laborer
     Custodial at the agency’s East Texas Processing and Distribution Center
     (P&DC)—because he was assigned PS-3 custodial duties at the Shreveport P&DC
     following the closure of the East Texas P&DC without following the reduction in
     force (RIF) procedures set out in 5 C.F.R. part 351. Smith v. U.S. Postal Service,
     MSPB Docket No. DA-0351-13-0595-I-1, Initial Decision (March 18, 2014). The
     agency petitioned for review of that initial decision, and the Board has issued a
     Final Order dismissing that appeal for lack of jurisdiction, finding that the
     appellant was not released from his competitive level by demotion. Smith v. U.S.
     Postal Service, MSPB Docket No. DA-0351-13-0595-I-1, Final Order (Apr. 14,
     2015).
¶3        While the petition for review in the RIF appeal was pending, the appellant
     filed the current appeal, in which he alleged that the agency violated the Veterans
     Employment Opportunities Act of 1998 (VEOA) by failing to afford him his
     veterans’ preference rights, in that it allegedly failed to comply with the order for
     relief set forth in the initial decision in the RIF appeal. Finding that the appellant
     had not identified any new action taken by the agency or any legal issues that
     would not be resolved in the RIF appeal, the administrative judge dismissed the
     VEOA appeal on grounds of administrative efficiency.

                                         ANALYSIS
¶4        As correctly noted by the administrative judge, to establish jurisdiction over
     a VEOA appeal, an appellant must : (1) show that he exhausted his remedy with
     the Department of Labor; and (2) make nonfrivolous allegations that (i) he is a
     preference eligible within the meaning of the VEOA, (ii) the action(s) at issue
     took place on or after October 30, 1998, and (iii) the agency violated his rights
     under a statute or regulation relating to veterans’ preference.           Hillman v.
                                                                                        3

     Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 9 (2003), overruled on other
     grounds by Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660
     (2005).   The appellant was given notice of these jurisdictional requirements.
     Initial Appeal File, Tab 3. The only jurisdictional element in question in this
     appeal is the last one, whether the agency violated the appellant’s rights under a
     statute or regulation relating to veterans’ preference.
¶5         In his petition for review, the appellant emphasizes that, as an employee
     with veterans’ preference, he has higher retention standing and superior
     assignment rights in a RIF than do nonpreference eligibles. Petition for Review
     File, Tab 1. Although it is true that only preference eligibles in the Postal Service
     have rights under the RIF regulations, see Robinson v. U.S. Postal Service,
     63 M.S.P.R. 307, 311 (1994), this has no legal relevance outside of a RIF, and the
     Board has dismissed the appellant’s RIF appeal for lack of jurisdiction.
     Accordingly, we find that the appellant has not made a nonfrivolous allegation
     that the agency violated his rights under a statute or regulation relating to
     veterans’ preference, and he has therefore failed to establish jurisdiction over a
     VEOA appeal.

                     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
                                                                                  4

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
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.
