Everton G. Russell v. United States Postal Service
Background
- Everton G. Russell, a U.S. Postal Service Mail Processing Clerk (excepted service), was placed in an off-duty, nonpay status after a fitness-for-duty exam effective June 7, 2016.
- Russell filed an MSPB appeal on June 13, 2016, challenging the nonpay placement and asserting prohibited personnel practice and whistleblower reprisal claims.
- The administrative judge issued a jurisdictional order and directed Russell to meet his burden to establish Board jurisdiction; Russell responded but submitted no evidence showing he met statutory criteria for chapter 75 appeals by Postal employees.
- The administrative judge dismissed the appeal for lack of jurisdiction without a hearing; Russell petitioned for review; the agency opposed.
- The Board denied the petition for review and affirmed the initial decision, concluding Russell failed to show he is covered for chapter 75 review and that his whistleblower and other prohibited-practice allegations do not create independent Board jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over Russell’s placement in nonpay status under 5 U.S.C. ch. 75 | Russell contends he is an excepted-service employee with chapter 75 appeal rights (e.g., excepted as a preference eligible or meeting § 7511 criteria) | Agency contends Postal employees can invoke chapter 75 only if covered by 39 U.S.C. § 1005(a) or § 7511(a)(1)(B)(ii) (preference-eligible, manager/supervisor, or certain personnel employees with 1 year service) and Russell did not show coverage | Held: No jurisdiction — Russell failed to prove he meets the statutory coverage for chapter 75 appeals |
| Whether Russell’s whistleblower/prohibited-practice allegations independently create MSPB jurisdiction | Russell asserts whistleblower reprisal and other prohibited personnel practice claims tied to the nonpay status | Agency and AJ argue that absent an otherwise appealable action, such allegations do not confer Board jurisdiction for Postal employees | Held: No — whistleblower/prohibited-practice claims do not create independent jurisdiction without an otherwise appealable action |
| Whether the action should be treated as a negative suitability determination giving MSPB jurisdiction | Russell initially characterized the action as a negative suitability determination | Agency notes Postal positions are in the excepted service and negative suitability determinations are not appealable to the Board | Held: The Board lacks jurisdiction over negative suitability determinations for Postal employees |
| Whether the AJ erred procedurally in dismissing without a hearing | Russell sought review but did not present jurisdictional evidence; AJ provided jurisdictional notice and opportunity to respond | Agency defends AJ’s dismissal as proper because burden remained unmet | Held: Dismissal without hearing affirmed — AJ properly found lack of jurisdiction based on the record |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (MSPB’s authority is limited to matters granted by law or regulation)
- Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404 (2016) (criteria for Postal employee chapter 75 appeals)
- Slater v. U.S. Postal Service, 112 M.S.P.R. 28 (2009) (absence of an otherwise appealable action bars Board jurisdiction over Postal employee whistleblowing claims)
- Wren v. Department of the Army, 2 M.S.P.R. 1 (1980) (similar principle that certain claims do not create jurisdiction absent an appealable action)
- McBride v. U.S. Postal Service, 78 M.S.P.R. 411 (1998) (Postal employees generally may not appeal negative suitability determinations to the Board)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court requires strict observance of statutory filing deadlines for appeals)