                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWARD BUCKHANON,                               DOCKET NUMBER
                 Appellant,                          AT-0752-14-0695-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 29, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Edward Buckhanon, Jacksonville, Florida, pro se.

           James M. Reed, Tampa, Florida, 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 the 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        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). 5 U.S.C. § 7511(b)(8). Thus, to appeal an adverse action under
     chapter 75, a U.S. 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
     without a break in service of a workday.          39 U.S.C. § 1005(a); 5 U.S.C.
     § 7511(a)(1)(B); see, e.g., Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, ¶ 13
     (2010); Hayes v. U.S. Postal Service, 36 M.S.P.R. 622, 624 (1988).
¶3        The appellant appealed the May 23, 2014 termination of his appointment as
     a Postal Support Employee (PSE) Tractor Trailer Operator. Initial Appeal File
     (IAF), Tab 1. 2 In response to the administrative judge’s jurisdictional order, IAF,
     Tab 5, the appellant submitted documentation indicating that the agency

     2
       The appellant prematurely filed this appeal on May 17, 2014, IAF, Tab 1, but his
     termination occurred soon thereafter, IAF, Tab 4 at 14-16, perfecting the appeal, see
     IAF, Tab 8 at 1 n.1.
                                                                                          3

     appointed him to that position effective January 12, 2014, IAF, Tab 7 at 8. Prior
     to that, the appellant served in the same position from November 17, 2013, to
     January 10, 2014, and as a Mail Handler Assistant from April 20, 2013, to
     November 11, 2013.        Id. at 6-7. The record also established that the appellant is
     preference eligible, IAF, Tab 4 at 7, and he did not claim that he was either a
     management or supervisory employee or an employee engaged in personnel work
     in other than a purely nonconfidential clerical capacity, see IAF, Tab 8, Initial
     Decision (ID) at 4 n.2.
¶4         Citing the chronology set forth above, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that the appellant had less than 1 year
     of current continuous service in the same or similar positions without a break in
     service. ID at 4. In his petition for review, the appellant discusses the merits of
     his termination, but he does not contend that he had 1 year of current continuous
     service in the same or similar positions without a break in service. Petition for
     Review (PFR) File, Tab 1. Moreover, none of the documents he submits with his
     petition for review, all of which appear to date from before the close of the record
     below, 3 establish that he had the requisite current continuous service to enable
     him to appeal his termination to the Board. Id. at 6-17.
¶5         We agree with the administrative judge that the appellant failed to
     demonstrate that he is an employee with Board appeal rights because he lacks the
     required year of current continuous service in the same or similar positions. The
     record reflects that, even disregarding the 1-day break in service on Saturday
     January 11, 2014, the appellant spent just over 6 months in the PSE Tractor
     Trailer Operator position. ID at 2; IAF, Tab 7 at 6-8, Tab 4 at 14-16. In addition,
     prior to that, the appellant served in a different position and experienced a 5-day


     3
       Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the
     first time with the petition for review absent a showing that it was unavailable before
     the record was closed despite the party’s due diligence. The appellant makes no such
     showing.
                                                                                  4

break in service before the agency appointed him to the position of PSE Tractor
Trailer Operator. IAF, Tab 7 at 5-6.

                 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.
     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
                                                                           5

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.
