Tonya M. Anderson v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TONYA M. ANDERSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1713
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-3443-22-0360-I-1.
______________________
Decided: December 9, 2024
______________________
TONYA M. ANDERSON, Cleveland, OH, pro se.
STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON JANE BOYLE,
KATHERINE MICHELLE SMITH.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Case: 24-1713 Document: 34 Page: 1 Filed: 12/09/2024

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ANDERSON v. MSPB 2
Tonya Anderson was employed as a Mail Processor at
the United States Postal Service from July 1997 to
February 2000, when she was removed from her position.
When she appealed her removal to the Merit Systems
Protection Board, the Board dismissed her appeal. Ms.
Anderson now petitions for us to review the Board’s
decision. We affirm.
I
The Postal Service removed Ms. Anderson from her
position as a Mail Processor on February 13, 2000. Two
decades later, on June 28, 2022, she filed an appeal of her
removal with the Board, alleging either a reduction in
grade or wrongful dismissal. On July 7, 2022, the assigned
Board administrative judge ordered Ms. Anderson to
demonstrate that the Board had jurisdiction, and Ms.
Anderson filed no response.
In late July 2022, the Postal Service moved to dismiss
Ms. Anderson’s appeal on the ground that the Board lacked
jurisdiction. The Postal Service argued that Ms. Anderson
came with none of the categories of Postal Service
employees entitled to appeal to the Board as relevant here:
She was not a preference-eligible employee (an employee
who meets specific criteria related to veteran status), a
management or supervisory employee, or an employee
engaged in personnel work other than a purely non-
confidential clerical capacity. SAppx44–46 (citing 5 U.S.C.
§ 7511(a)(1)(B); 39 U.S.C. § 1005(a); 5 U.S.C. § 2108(1)–
(5)). The Postal Service also argued that the 2022 appeal
of a 2000 removal was untimely. SAppx46–47 (citing 5
C.F.R. §§ 1201.22(b)(1) (30-day period for appeal),
1201.56(b)(2)(i)(B) (appellant bears burden of proof on
timeliness)).
On September 27, 2022, the Board’s administrative
judge dismissed the appeal because, as the Postal Service
argued, Ms. Anderson had no right of appeal. SAppx8–11.
On October 14, 2022, Ms. Anderson sought full Board
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ANDERSON v. MSPB 3
review, confirming in her petition that she was neither a
supervisor nor a preference-eligible employee. SAppx54–
59. On April 2, 2024, the Board affirmed the dismissal on
the ground set forth by the administrative judge. SAppx1–
2. Like the administrative judge, the Board did not address
the government’s assertion of untimeliness. SAppx2 n.2.
Ms. Anderson timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
We decide de novo whether the Board had jurisdiction.
Forest v. Merit Systems Protection Board, 47 F.3d 409, 410
(Fed. Cir. 1995). “[W]e are bound by the [Board]’s factual
determinations unless those findings are not supported by
substantial evidence.” Bolton v. Merit Systems Protection
Board, 154 F.3d 1313, 1316 (Fed. Cir. 1998). Ms. Anderson
has the burden of proof to establish jurisdiction by a
preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
The Board’s jurisdiction “is limited to those actions
which are made appealable to it by law, rule, or regulation.”
Synan v. Merit Systems Protection Board, 765 F.2d 1099,
1100 (Fed. Cir. 1985); see 5 U.S.C. § 7701(a). The statute
that grants the Board jurisdiction over the appeals of
removals of employees generally excludes Postal Service
employees. 5 U.S.C. § 7511(b)(8). But under the Postal
Service Employees Appeal Rights Act (PEARA), certain
Postal Service employees may appeal an adverse action to
the Board: preference-eligible employees under 5 U.S.C.
§ 7511(a)(1)(B); and persons who are supervisory or
management employees or engaged in personnel work
other than in a purely non-confidential clerical capacity, as
long as they have completed one year of current continuous
service in the same or similar positions. 39 U.S.C.
§ 1005(a)(4). To be preference eligible under 5 U.S.C.
§ 7511(a)(1)(B), an employee must have served in active
duty in the armed forces during one of several enumerated
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ANDERSON v. MSPB 4
time periods, be a disabled veteran, or have a special family
relationship with a preference-eligible person or disabled
veteran. 5 U.S.C. § 2108.
Ms. Anderson provided no evidence to the Board that
she comes within any of the categories of persons permitted
by PEARA to appeal a removal to the Board. First, she
made no showing that she was a veteran, or has the
required special family relationship, or otherwise qualified
as a preference-eligible employee. SAppx23–26, SAppx35.
Second, she did not show that she was a supervisory or
management employee or that she was engaged in
personnel work in other than a purely nonconfidential
clerical capacity. SAppx23–26. Although she listed
“Associate Supervisor” as her position in her appeal to the
Board, SAppx23, her employment records do not list her
“Position Title” as a supervisor, SAppx35, and in her
petition for Board review of the administrative judge’s
decision, she admitted that she was not placed into the
supervisor program, SAppx54.
Because Ms. Anderson has not shown that she
qualified as an employee with Board appeal rights, the
Board correctly dismissed her appeal for lack of
jurisdiction. Given this conclusion, we need not reach the
issue of timeliness.
III
We affirm the Board’s dismissal.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1713 Document: 34 Page: 4 Filed: 12/09/2024

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