                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COLIN J. GREEN,                                 DOCKET NUMBER
                         Appellant,                  SF-0752-15-0700-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: March 4, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Zedie E. Ramage, Jr., Fresno, California, for the appellant.

           Gregory Brumfield, Jr., Esquire, San Diego, California, 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 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.       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 was removed from his position as a U.S. Postal Service
     Custodian effective June 13, 2015, based on unacceptable conduct. Initial Appeal
     File (IAF), Tab 5 at 15-19.   The appellant has filed an appeal challenging the
     removal and alleging that the agency discriminated against him based on his age,
     race, color, disability, national origin, sex, and religion. IAF, Tab 1. The agency
     filed a motion to dismiss, arguing that the appeal should be dismissed for lack of
     jurisdiction because the appellant was not a preference eligible and did not
     otherwise qualify as an employee with appeal rights to the Board. IAF, Tab 5
     at 7-9. The administrative judge issued an order advising the appellant of the
     requirements to establish jurisdiction over an adverse action appeal and ordering
     him to show cause why the appeal should not be dismissed for lack of
     jurisdiction. IAF, Tab 6. In his response, the appellant did not assert that he met
     the requirements of 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1). He argued,
     however, that the Board has jurisdiction over his appeal because the agency’s
     letter of decision indicated that he had appeal rights to the Board. IAF, Tab 7.
     The administrative judge found that the appellant was not an employee with
     adverse action appeal rights and dismissed the appeal for lack of jurisdiction.
     IAF, Tab 8, Initial Decision (ID).
                                                                                         3

¶3         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
¶4         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).           A U.S. Postal Service
     employee may file a Board appeal under 5 U.S.C. chapter 75 only if he is covered
     by   39 U.S.C.   § 1005(a)    or   5 U.S.C.   § 7511(a)(1)(B)(ii).     See    5 U.S.C.
     § 7511(b)(8).    Thus, to appeal an adverse action under chapter 75, a Postal
     employee (1) must be a preference eligible, a management or supervisory
     employee, or an employee engaged in personnel work in other than a purely
     nonconfidential clerical capacity, and (2) must have completed 1 year of current
     continuous service in the same or similar positions.         Toomey v. U.S. Postal
     Service, 71 M.S.P.R. 10, 12 (1996).
¶5         On review, the appellant does not argue that the administrative judge erred
     in finding that he did not have preference-eligible status, was not a manager or
     supervisor, and was not engaged in personnel work in other than a purely
     nonconfidential status. ID at 2-3. Instead, he continues to argue that the Board
     has jurisdiction over his appeal because the agency’s notice of decision advised
     him that he had rights to appeal to the Board. PFR File, Tab 1. This argument is
     unavailing. It is well settled that an agency error in notifying an appellant of a
     possible right to a Board appeal does not serve to confer jurisdiction on the
     Board.   Miles-Townsend v. U.S. Postal Service, 37 M.S.P.R. 405, 407 (1988).
     Regarding the appellant’s discrimination claims, in the absence of an otherwise
     appealable action, the Board cannot consider his affirmative defenses based on
     discrimination as an independent source of jurisdiction. Wren v. Department of
     the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.3d 867, 871-73 (D.C. Cir. 1982).
¶6         In sum, the administrative judge correctly dismissed the appeal for lack of
     jurisdiction. Nothing in the petition for review shows error in the administrative
     judge’s well-reasoned initial decision and there is no basis to disturb it.
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                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
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.
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      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.
