Joseph C. Payne v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH C. PAYNE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1231
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-22-0599-I-1.
______________________
Decided: November 7, 2023
______________________
J OSEPH C. P AYNE, Millsboro, DE, pro se.
CALVIN M. M ORROW , Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before L OURIE, MAYER, and STARK, Circuit Judges.
Case: 23-1231 Document: 43 Page: 1 Filed: 11/07/2023

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PAYNE v. MSPB 2
P ER CURIAM .
Joseph Payne appeals from a decision of the United
States Merit Systems Protection Board (“the Board”) dis-
missing his appeal in the interest of adjudicatory efficiency.
Payne v. U.S. Postal Serv., No. DC-4324-22-0599-I-1,
2022 WL 9464682 (M.S.P.B. Oct. 14, 2022) (“Decision”);
R.A.1 1–12. For the following reasons, we affirm.
BACKGROUND
On September 21, 2021, Payne filed an appeal at the
Board challenging the United States Postal Service’s fail-
ure to promote him to a Vehicle Operations and Mainte-
nance Assistant (“VOMA”) position in 2008. Payne v. U.S.
Postal Serv., No. PH-3443-21-0363-I-1, 2022 WL 909504
(M.S.P.B. Mar. 25, 2022); R.A. 15–25. The administrative
judge assigned to that first appeal determined that Payne
intended to raise claims under the Veterans Employment
Opportunities Act of 1998 (“VEOA”) and the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”). R.A. 17. The administrative judge dis-
missed the VEOA claim as untimely and suspended the
case for discovery on the USERRA claim. Id. While that
case was suspended, Payne filed an appeal in this court.
Payne v. U.S. Postal Serv., No. 2022-1419, 2022 WL
1197334, *1 (Fed. Cir. 2022). That appeal was dismissed
for lack of jurisdiction because the USERRA claim was still
pending, and no decision had yet issued. Id. The adminis-
trative judge later issued an initial decision dismissing the
USERRA claim on the basis of laches. R.A. 18–19. Payne
then petitioned for review by the full Board. Decision, R.A.
3.
On August 22, 2022, while the petition for review was
pending, Payne filed a second appeal at the Board. Id.,
R.A. 1. The administrative judge assigned to the second
1 R.A. refers to the Respondent’s Appendix.
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PAYNE v. MSPB 3
appeal reviewed Payne’s filings and determined that he
was asserting the same claims based on the same facts as
in the first Board appeal. Id., R.A. 2. The administrative
judge ordered Payne to show cause why the second appeal
should not be dismissed for adjudicatory efficiency based
on the pending petition for review of the first Board appeal.
Id., R.A. 3. The administrative judge found Payne’s subse-
quent filings to be unresponsive and dismissed the second
appeal. Id., R.A. 3–4.
Payne did not file a petition for review of his second
appeal to the Board; the administrative judge’s initial de-
cision thus became the final decision of the Board on No-
vember 18, 2022. 5 C.F.R. § 1201.113. Payne timely
appealed the decision dismissing his second appeal to the
Board for adjudicatory efficiency, and we have jurisdiction
under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
A Board decision may only be set aside if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). The petitioner “bears the burden of establishing
error in the Board’s decision.” Harris v. Dep’t of Veterans
Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Payne does not argue that his second appeal to the
Board presented different claims from the first and was
therefore wrongly dismissed for adjudicatory efficiency. In-
deed, none of his hundreds of pages of appendix materials
address that basis of dismissal. Instead, he presents argu-
ments relating to the merits of his claim: his non-selection
for a VOMA position by the United States Postal Service in
2008. Pet. Br. 2. Payne argues that it was customary at
the post office where he worked to award the VOMA posi-
tion to the most experienced applicant and that at the time
of his non-selection he was the most experienced applicant
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PAYNE v. MSPB 4
because he had performed the most hours of vehicle
maintenance. Id. at 2–4. He therefore requests that this
court provide both back pay from 2008 to his retirement in
2015, as well as elevated post-retirement pay. Id. at 3. But
none of these arguments addresses the Board’s purported
error under review—dismissal on the basis of adjudicatory
efficiency—and our review is generally limited to the
grounds upon which the record discloses that the Board’s
action was based. Killip v. Off. of Personnel Mgt., 991 F.2d
1564, 1568–69 (Fed. Cir. 1993) (citing SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943)).
Based on our review of the record, we conclude that the
administrative judge did not err in finding that Payne
raised the same claim based on the same facts in the first
Board appeal. Payne’s petition for review of the first ap-
peal was still pending when the administrative judge dis-
missed the second appeal. See Decision, R.A. 1–12; Payne
v. U.S. Postal Serv., No. PH-3443-21-0363-I-1, 2023 WL
4359452 (M.S.P.B. July 5, 2023). When an appellant files
an appeal with the Board that presents the same claims as
an earlier appeal and the earlier appeal remains pending
before the full Board, an administrative judge does not vi-
olate the law in dismissing the later appeal in the interest
of adjudicatory efficiency. We see no reason to draw a dif-
ferent conclusion here.
CONCLUSION
We have considered Payne’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
COSTS
No costs.
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