David Shu v. United States Postal Service
Background
- Appellant David Shu, a former Postal Service letter carrier, returned to duty in November 2010 after a 2003 compensable injury and later restoration.
- In September 2013 Shu was alleged to have failed to report a motor vehicle accident; the agency removed him in November 2013 for unacceptable conduct and failure to report the accident.
- Shu alleged the 2013 removal was tied to his earlier compensable injury and 2010 restoration; he filed an MSPB appeal challenging the removal and asserting restoration-related claims.
- The administrative judge dismissed the appeal for lack of Board jurisdiction as an adverse action appeal under chapter 75 and for lack of a nonfrivolous restoration allegation.
- Shu filed a petition for review; the Board denied review and affirmed dismissal, finding Shu was not a preference eligible, supervisor, manager, or covered personnel employee and that the 2013 misconduct was substantially unrelated to his compensable injury.
- The Board noted Shu’s other claims (due process, fabricated evidence, arbitration representation, penalty severity) could not be addressed absent jurisdiction and informed him of Federal Circuit review rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board has jurisdiction over Shu’s removal as a chapter 75 adverse action appeal | Shu contends the removal is retaliatory and linked to his restoration, so Board should hear it | USPS argues Shu is not a preference eligible, supervisor, manager, or covered personnel employee and thus lacks chapter 75 appeal rights | Held: No jurisdiction — Shu lacks status required for chapter 75 appeals |
| Whether the Board has jurisdiction under restoration regulations (5 C.F.R. § 353.304) | Shu asserts removal is part of an ongoing effort to circumvent his 2003 injury and 2010 restoration | USPS contends the alleged misconduct (unreported 2013 accident) is unrelated to compensable injury and no post‑2010 compensable absence occurred | Held: No jurisdiction — Shu failed to nonfrivolously allege restoration claim; separation was substantially unrelated to compensable injury |
| Whether discovery or missing appeal file denied relevant jurisdictional material | Shu argues agency withheld appeal file and discovery responses relevant to his jurisdictional burden | USPS provided record; the requests pertained to merits, not jurisdiction | Held: No showing that agency denied materials relevant to jurisdiction; discovery objections do not alter jurisdictional outcome |
| Whether Board should reach merits (due process, fabrication, penalty, arbitration representation) | Shu asks the Board to address merits and alleged procedural/merits errors | USPS and Board maintain merits cannot be considered without jurisdiction | Held: Dismissal affirmed; Board cannot decide merits without jurisdiction |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board’s jurisdiction is limited to matters conferred by law)
- Clark v. U.S. Postal Service, 118 M.S.P.R. 527 (2012) (requirements for Postal Service employees to appeal under chapter 75)
- Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000) (merits decision is a nullity absent Board jurisdiction)
- Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357 (1987) (mere disagreement with the judge’s resolution on issues does not warrant review)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (strict observance of the Federal Circuit’s filing deadline for appeals)