Everton G. Russell v. United States Postal Service
Background
- Everton G. Russell, a U.S. Postal Service Mail Processing Clerk, was placed in an off-duty, nonpay status after a fitness-for-duty exam effective June 7, 2016.
- Russell appealed to the Merit Systems Protection Board (MSPB) on June 13, 2016, disputing the nonpay placement and asserting chapter 75 appeal rights and prohibited personnel practice/whistleblower claims.
- The administrative judge issued a jurisdictional order and dismissed the appeal for lack of jurisdiction without a hearing after Russell failed to meet the jurisdictional burden.
- Russell filed a petition for review; the Board considered the filings and denied the petition, affirming the initial decision as the Board’s final decision.
- The Board held that Postal Service employees may appeal under 5 U.S.C. chapter 75 only if covered by 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1)(B)(ii) (e.g., preference eligibles, managers/supervisors, or personnel employees in certain roles) and that Russell did not show he met those criteria.
- The Board also explained that absent an otherwise appealable action, whistleblower or other prohibited practice allegations do not create independent Board jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction under 5 U.S.C. chapter 75 over Russell’s nonpay placement | Russell contends he has chapter 75 appeal rights as an excepted-service Postal employee | Agency maintains chapter 75 jurisdiction applies only to Postal employees meeting statutory criteria (e.g., preference eligible, manager, certain personnel employees) and Russell did not show he qualifies | MSPB lacks jurisdiction; Russell failed to establish he meets chapter 75 criteria |
| Whether Russell’s placement was a negative suitability determination (and thus nonappealable) | Russell characterized the action as adverse and appealable | Agency/board noted Postal employees cannot appeal negative suitability determinations to the Board | Board found jurisdiction lacking over suitability claims and cited precedent holding such determinations nonappealable |
| Whether whistleblower/prohibited personnel practice allegations create independent Board jurisdiction | Russell asserted prohibited personnel practices and whistleblower reprisal as bases for review | Agency argued those allegations do not confer jurisdiction absent an otherwise appealable action | Held: such allegations do not create independent MSPB jurisdiction without an appealable action |
| Whether the initial decision should be reversed on procedural or factual error | Russell sought review reiterating prior assertions | Board reviewed the record and found no erroneous findings, misapplication of law, or procedural abuse | Petition for review denied; initial decision affirmed |
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, rule, or regulation)
- Wren v. Department of the Army, 681 F.2d 867 (D.C. Cir. 1982) (affirming Board principle that, absent an appealable action, jurisdiction over whistleblowing claims is lacking)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court will not normally excuse failure to meet statutory filing deadlines for appeals)