                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDY ZAPATA,                                   DOCKET NUMBER
                 Appellant,                          AT-0752-14-0360-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 23, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Randy Zapata, Miami-Gardens, Florida, pro se.

           Ronald E. Jones, Esquire, Dallas, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of an alleged reduction in grade or pay 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 reassigned from the position of Mail Processing Clerk to
     the position of City Carrier without a loss of pay when the facility where he
     worked was closed. Initial Appeal File (IAF), Tab 5 at 8-10, 21. He filed this
     appeal alleging that he was reduced in grade or pay, given a negative suitability
     determination, and that the agency failed to restore or improperly restored him to
     duty after he suffered a compensable injury. IAF, Tab 1 at 3.
¶3         The record showed that the appellant is not a management or supervisory
     employee, nor is he an employee engaged in personnel work in other than a
     purely nonconfidential clerical capacity. IAF, Tab 5 at 7. He is not a preference
     eligible. IAF, Tab 1 at 1, Tab 5 at 12. His PS-50 forms show a reassignment to a
     different position at an equivalent grade without any loss of pay. IAF, Tab 5 at 8,
     10.   The record also includes a September 16, 2013 letter from the District
     Reasonable Accommodation Committee denying his requested reasonable
     accommodation. Id. at 21. The letter states that he was unable to perform the
     duties of a Mail Processing Clerk and that the “data entry clerk” position
     requested by his physician was unavailable. Id.
                                                                                         3

¶4        The appellant did not respond to the administrative judge’s order regarding
     his jurisdictional burdens for adverse action and restoration to duty appeals. See
     IAF, Tab 4. Accordingly, the administrative judge found that the appellant failed
     to allege any facts that would bring the appeal within the Board’s jurisdiction.
     IAF, Tab 6, Initial Decision (ID) at 3. The administrative judge also found that
     the Board lacked jurisdiction to decide any affirmative defenses that the appellant
     might have raised. ID at 3. Accordingly, the administrative judge dismissed the
     appeal. ID at 3.
¶5        The administrative judge decided the appeal correctly.             The Board’s
     jurisdiction is not plenary; it 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). The Board does not have jurisdiction
     over all matters involving a federal employee that are allegedly unfair or
     incorrect. Johnson v. U.S. Postal Service, 67 M.S.P.R. 573, 577 (1995). The
     appellant   bears   the   burden   of   proof   on   the   issue   of   the   Board’s
     jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i).
¶6        A preference eligible, a management or supervisory employee, or an
     employee engaged in personnel work in other than a purely nonconfidential
     clerical capacity in the U.S. Postal Service who has completed 1 year of current
     continuous service in the same or similar positions may appeal a reduction in
     grade or pay to the Board. See 5 U.S.C. §§ 7511(a)(1)(B), 7512(3), (4), 7513(d);
     Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 6 (2008). As the record
     shows and the administrative judge correctly found, the appellant is not a
     preference eligible; his past and present positions are neither managerial nor
     supervisory; and he is not engaged in personnel work in other than a purely
     nonconfidential clerical capacity. IAF, Tab 1 at 1, Tab 5 at 7-8, 10 12. His
     PS-50 forms do not show a loss of pay or grade because of the position change.
     IAF, Tab 5 at 8-10.   Other than his bare allegation on the appeal form, see IAF,
     Tab 1 at 3, the appellant offered nothing to show that he was seeking restoration
                                                                                        4

     after a compensable injury.     Accordingly, we find no basis for the Board to
     exercise jurisdiction over this matter.
¶7         We also note that the appellant’s petition for review is late-filed. A petition
     for review must be filed within 35 days after the date of issuance of the initial
     decision or, if the petitioner shows that the initial decision was received more
     than 5 days after the date of issuance, within 30 days after the date the petitioner
     received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
     was issued on March 18, 2014. ID at 1. The initial decision states that it would
     become the Board’s final decision on April 22, 2014, in the absence of a petition
     for review or a Board decision to reopen the case on its own motion. ID at 3. On
     August 27, 2014, the appellant sent the regional office a letter requesting
     reconsideration of the appeal.     Petition for Review (PFR) File, Tab 1.        The
     appellant stated that he did not receive the initial decision and that he had been
     unable to determine whether it had been issued from the Board’s e-Appeal
     system. Id. at 2. Board records show that the initial decision was served by
     electronic mail on the date of issuance. See IAF, Tabs 6, 7. The finality date of
     April 22, 2014, thus applies.
¶8         The Board will waive its time limit for filing only upon a showing of good
     cause for the delay in filing. 5 C.F.R. § 1201.114(g). A late-filed petition for
     review must be accompanied by a motion that shows good cause for the untimely
     filing, unless the Board has specifically granted an extension of time or a motion
     for an extension is pending. Id. The motion must be accompanied by an affidavit
     or statement signed under penalty of perjury, which includes the reasons for
     failing to request an extension before the filing deadline; and a specific and
     detailed description of the circumstances causing the late filing, accompanied by
     supporting documentation or other evidence. Id. The Office of the Clerk of the
     Board informed the appellant of his burden to show good cause and of the
     applicable regulations. PFR File, Tab 2. The Clerk’s letter included a copy of
     the Board’s standard affidavit/signed statement. Id. at 7-8. The appellant did not
                                                                                  5

respond to the Clerk’s letter. In light of our dismissal of this appeal based on
jurisdiction, however, we need not address whether the appellant showed good
cause for the delay. See Taylor v. Department of the Army, 107 M.S.P.R. 638, ¶ 1
(2008).

                  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
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.
                                                                            6

     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.
