Yolanda S. Geiren v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
YOLANDA S. GEIREN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3163
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752100958-I-1.
___________________________
Decided: April 6, 2012
___________________________
Y OLAND S. G EIREN , of Naperville, Illinois, pro se.
SARA B. REARDEN , Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC for respondent. With her on the brief were JAMES M.
EISENMANN , General Counsel, and KEISHA D AWN BELL,
Deputy General Counsel.
__________________________
Before LINN , O’M ALLEY, and REYNA, Circuit Judges.

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GEIREN v. MSPB 2
PER C URIAM.
Yolanda S. Geiren appeals the Merit Systems Protec-
tion Board’s (“Board”) decision affirming the administra-
tive judge’s (“AJ”) dismissal of her appeal for lack of
jurisdiction. We affirm the Board’s decision because Ms.
Geiren is not a preference-eligible veteran.
Ms. Geiren was employed by the U.S. Postal Service
from December 1989 until January 2007, when she was
removed from her position as a mail handler for being
absent without official leave. In September 2008, Ms.
Geiren contacted the Postal Service’s equal employment
opportunity office and filed a formal discrimination com-
plaint, which the agency dismissed in November 2008 as
untimely. Ms. Geiren appealed to the Equal Employment
Opportunity Commission, which affirmed the agency’s
dismissal of the complaint as untimely.
Ms. Geiren appealed to the Board. The AJ issued two
orders. In the first order, the AJ advised Ms. Geiren that,
as a non-supervisory Postal Service employee, she was
required to be a preference-eligible veteran for the Board
to exercise jurisdiction over her appeal. The AJ ordered
Ms. Geiren to file evidence and/or argument to prove that
her appeal was within the Board’s jurisdiction. In the
second order, the AJ advised Ms. Geiren that her appeal
might be untimely filed and ordered her to submit evi-
dence and/or argument demonstrating that good cause
existed for any delay in the filing of the appeal.
Ms. Geiren responded to both orders. To support her
claim that she was a veteran, Ms. Geiren referred to her
Form DD214, a certificate of release or discharge from
active duty. The Form DD214 indicates that Ms. Geiren
participated in initial active duty training with the Army
Reserve for about four months in 1989. Ms. Geiren,
however, did not address whether she was a preference-

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GEIREN v. MSPB 3
eligible veteran. Ms. Geiren also argued, for reasons
irrelevant here, that her appeal was timely.
The Postal Service responded to Ms Geiren’s submis-
sions by moving to dismiss for lack of jurisdiction on the
grounds that Ms. Geiren was not a preference-eligible
veteran and that her appeal was untimely. In an initial
decision, the AJ dismissed the appeal because the AJ
concluded that Ms. Geiren’s reserve training did not
qualify her for preference eligibility. Because Ms. Geiren
was not preference eligible, the AJ found, she lacked any
appeal rights to the Board. The AJ declined to address
the timeliness issue because the AJ believed the jurisdic-
tional ruling disposed of the matter.
Ms. Geiren appealed the initial decision to the full
Board. In its final order, the Board agreed with the AJ
that the Board lacked jurisdiction because Ms. Geiren was
not preference eligible and, consequently, lacked appeal
rights. The Board also agreed that the AJ was correct to
decline to address the timeliness issue. According to the
Board, where lack of jurisdiction is clear, an appeal
should be dismissed on the basis of jurisdiction rather
than timeliness. Geiren v. U.S. Postal Serv., No. CH-
0752-10-0958-I-1 at 3 (Final Order Apr. 27, 2011) (citing
Beaudette v. Dep’t of Treasury, 100 M.S.P.R. 353 ¶ 11
(2005); Epps v. U.S. Postal Serv., 70 M.S.P.R. 188, 190
(1996); Rolon v. Dep’t of Veterans Affairs, 53 M.S.P.R. 362,
365 (1992)). Finding no legal error in the AJ’s analysis or
new, previously unavailable evidence in the record, the
Board affirmed the AJ’s initial decision.
On appeal to this court, Ms. Geiren argues that the
Board erred when it found that her status as a veteran
did not secure her appeal rights. We agree with the
Board that it lacked jurisdiction because Ms. Geiren is not
a preference-eligible veteran.

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GEIREN v. MSPB 4
Only federal “employees,” as defined by statute, are
authorized to appeal an adverse personnel action to the
Board. 5 U.S.C. § 7513(d). Only certain Postal Service
employees fall within the definition of those “employees”
with appeal rights. 5 U.S.C. § 7511(b)(8). The Postal
Service employees who enjoy appeal rights are those who
(1) are 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) have completed one year of current continuous service
in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B);
39 U.S.C. § 1005(a); Fitzsimmons v. U.S. Postal Serv., 99
M.S.P.R. 1, 3 (2005). There was no dispute below that
Ms. Geiren, a former mailer handler, was not a supervi-
sory employee or one who engaged in personnel work in
other than a purely nonconfidential clerical capacity.1
Ms. Geiren, therefore, qualifies as an employee with
appeal rights only if she (1) completed one year of current
continuous service in the same or similar positions, and
(2) she is entitled to veterans’ preference. 5 U.S.C.
§ 7511(a)(1)(B); 39 U.S.C. § 1005(a).
1 Ms. Geiren states in her informal brief that a su-
pervisor qualifies for appeal rights. Appellant’s Br. 1. To
the extent Ms. Geiren argues that she worked in a super-
visory capacity at the Postal Service—an argument that
she would appear to be raising for the first time before
this court—that argument fails. The Board must receive
evidence to determine whether a petitioner has proven by
preponderant evidence that she was a supervisory em-
ployee. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1320 (Fed. Cir. 1998). To qualify as a supervisor, an
employee, generally, must demonstrate that she exercised
authority to discharge or discipline others, or that her
own performance evaluation was based on the perform-
ance of her subordinates. Id. at 1318. The record con-
tains no evidence from which the Board could have found
that Ms. Geiren was a supervisory employee.

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GEIREN v. MSPB 5
The Board correctly found that Ms. Geiren does not
satisfy those requirements. While there is no dispute that
Ms. Geiren completed at least one year of continuous
service with the Postal Service, the evidence in the record
indicates that Ms. Geiren is not a preference-eligible
veteran. The statute defining veterans’ preference pro-
vides that veterans who served on “active duty” are eligi-
ble for preference. 5 U.S.C. § 2108(1). The term “active
duty” is defined as “full-time duty in the Armed Forces,
other than active duty for training.” 38 U.S.C.
§ 101(21)(A) (emphasis added). The term “active duty for
training,” in turn, is defined as “full-time duty in the
Armed Services performed by Reserves for training pur-
poses.” 21 U.S.C. § 101(22)(A), (26), (27)(A). Thus, the
statute expressly excludes reserve training from the type
of service that qualifies a veteran for preference. Cf.
Burrow v. Nicholson, 245 F. App’x 972, 973 (Fed. Cir.
2007) (noting that Department of Veterans Affairs regula-
tions distinguish active duty from Army Reserve service).
Ms. Geiren’s Form DD214 indicates that she participated
only in initial active duty training with the Army Reserve
for about four months. There is no evidence that she
served in any capacity other than reserve training. Ms.
Geiren, therefore, cannot claim that she is a preference-
eligible veteran.
In her informal brief, Ms. Geiren argues that “the law
states a veteran qualifies under the requirements of
MSPB.” Appellant’s Br. 1. Ms. Geiren fails to take into
account the preference-eligibility requirement. As we
have explained above, not all veterans have the right to
appeal; only preference-eligible veterans do. Ms. Geiren’s
four months of reserve service is insufficient to make her
eligible for veterans’ preference.
We also agree with the Board that the AJ did not err
when the AJ declined to address the timeliness issue in

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GEIREN v. MSPB 6
the absence of finding jurisdiction over the appeal. The
Board must consider, as a threshold issue, whether it may
exercise jurisdiction. Rolon, 53 M.S.P.R. at 365. When it
is clear that the Board lacks jurisdiction, the Board may
dismiss an appeal for lack of jurisdiction without deciding
whether the appeal was timely filed. Epps, 100 M.S.P.R.
at 190. Epps is similar to this case. There, the AJ dis-
missed the petitioner’s appeal because it was untimely
filed. Id. The Board affirmed the dismissal, but on the
alternative ground that the Board lacked jurisdiction
because the petitioner was not a preference-eligible
veteran. Id. The Board has taken a similar approach in
other cases. See Rolon, 53 M.S.P.R. at 365 (dismissing
appeal for lack of jurisdiction rather than the timeliness
grounds relied upon by the AJ where the petitioner for-
feited his appeal rights by pursuing a negotiated griev-
ance procedure); Beaudette, 100 M.S.P.R at 358-59
(dismissing appeal for lack of jurisdiction rather than
timeliness where the Board lacked jurisdiction to review
an agency’s decision to upgrade the petitioner’s position
and the agency’s failure to select the appellant for the
upgraded position).
We must affirm the Board’s decision unless it is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; it is obtained without follow-
ing procedures required by law, rule, or regulation; or it is
unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Kewley v. Dep’t of Health & Human Serv., 153 F.3d 1357,
1361 (Fed. Cir. 1998). For the foregoing reasons, we find
no legal error in the Board’s decision and find it to be
supported by substantial evidence. The Board’s decision
is affirmed.
AFFIRMED

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GEIREN v. MSPB 7
COSTS
Each party shall bear its own costs.

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