Juan L. Ramirez v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUAN L. RAMIREZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1643
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-19-0065-I-1.
______________________
Decided: September 12, 2024
______________________
J UAN L. RAMIREZ, SR., Paterson, NJ, pro se.
ELIZABETH W. F LETCHER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before M OORE, Chief Judge, L INN and P ROST , Circuit
Judges.
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RAMIREZ v. MSPB 2
P ER CURIAM .
Juan L. Ramirez appeals a decision of the Merit Sys-
tems Protection Board (Board) dismissing his administra-
tive appeal for lack of jurisdiction. For the following
reasons, we affirm.
BACKGROUND
Mr. Ramirez is an employee of the United Stated Postal
Service (Postal Service). S. Appx. 45.1 He has been em-
ployed by the Postal Service since February 1998. Id. In
November 2017, the Postal Service notified Mr. Ramirez
that his position, PS-04 Mail Handler, had to be abolished
due to “realignment of workload with the staffing require-
ments of the tour.” Id. He was encouraged to bid on one of
the newly created positions or, alternatively, be automati-
cally reassigned to a vacant position. S. Appx. 27 n.1. In
December 2017, the Postal Service posted vacancies for em-
ployees that were realigned and allowed them to bid based
on their work shifts (e.g., night, day, afternoon). S. Appx.
45. Mr. Ramirez bid on a mail handler position but was
unsuccessful. Id.
Shortly thereafter, the Postal Service posted additional
vacancies to all mail handlers. S. Appx. 46. Several of
these positions were posted in error, and the Postal Service
was unable to cancel the postings from the online bidding
system. S. Appx. 27 n.1. Management, however, wrote the
word “CANCEL” on the paper postings placed in a common
area. Id.; see also S. Appx. 46. Mr. Ramirez bid for and
was awarded one of the cancelled positions in the online
bidding system, which was a PS-05 Mail Handler Equip-
ment Operator. S. Appx. 27 n.1, S. Appx. 46. In a letter
dated February 2, 2018, the Postal Service notified Mr.
Ramirez the new PS-05 Mail Handler Equipment Operator
1 “S. Appx.” refers to the supplemental appendix at-
tached to Respondent’s Informal Brief.
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RAMIREZ v. MSPB 3
position would be abolished. S. Appx. 55. In October 2018,
Mr. Ramirez was offered a choice between several positions
and management automatically placing him in one of the
positions. S. Appx. 58. In January 2019, he was officially
reassigned to a PS-04 Mail Handler position by manage-
ment. S. Appx. 78.
Mr. Ramirez timely appealed the reassignment to the
Board, alleging he suffered an involuntary demotion be-
cause he was downgraded from PS-05 Mail Handler Equip-
ment Operator (the cancelled position) to PS-04 Mail
Handler. S. Appx. 8. The Board did not address the merits
of Mr. Ramirez’s demotion claim because it determined
that it lacked jurisdiction over his claim. S. Appx. 8–12.
The Board found that Mr. Ramirez is not an employee en-
titled to appeal an adverse action to the Board. S. Appx.
11–12. Mr. Ramirez filed a petition for review by the full
Board, which was denied. S. Appx 1–2. Mr. Ramirez ap-
peals. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must uphold the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule or regulation having been
following; or (3) unsupported by substantial evidence.” 5.
U.S.C. § 7703(c). Whether the Board lacks jurisdiction is a
question of law we review de novo. Jones v. Merit Sys. Prot.
Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024).
When an individual appeals to the Board, he or she has
the burden of proving, by a preponderance of the evidence,
that the Board has jurisdiction. Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995); see also 5 C.F.R.
§ 1201.56(b)(2). Under 5 U.S.C. § 7513(d), an employee
against whom adverse action is taken is entitled to appeal
to the Board. The adverse action includes a reduction in
grade or a reduction in pay. 5 U.S.C. § 7512. Mr. Ramirez
argues the Board has jurisdiction because he is an
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RAMIREZ v. MSPB 4
employee that suffered a reduction in grade and a reduc-
tion in pay. Appellant’s Informal Br. at 5–6.
To establish jurisdiction, the individual appealing an
adverse action must qualify as an employee under 5 U.S.C.
§ 7511(a)(1). Postal Service employees are not employees
under the Board’s jurisdiction unless they are “preference
eligible,” 5 U.S.C. § 7511(a)(1)(B), or meet set requirements
in their Postal Service position. 5 U.S.C. § 7511(b)(8).
Those requirements, defined in 39 U.S.C. § 1005(a), ex-
plain that the Board’s jurisdiction over adverse actions
only applies to a preference eligible employee or other indi-
vidual who “(I) is in a position of a supervisor or a manage-
ment employee, or is an employee of the Postal Service
engaged in personnel work in other than a purely noncon-
fidential clerical capacity; and (II) has completed 1 year of
current continuous service in the same or similar posi-
tions.” 39 U.S.C. § 1005(a)(4)(A). In other words, the law
only permits certain Postal Service employees to appeal ad-
verse actions, such as a reduction in grade or pay, to the
Board.
The Board determined Mr. Ramirez has not estab-
lished that he is an employee over whom it has jurisdiction.
S. Appx. 11. Mr. Ramirez indicates he is not a preference
eligible employee. S. Appx. 70 (answering “No” to whether
he is entitled to veteran’s preference). He also does not al-
lege that he is a supervisor, manager, or personnel worker.
S. Appx. 45–50. The Board therefore properly determined
that Mr. Ramirez does not qualify as an employee with a
right to appeal to the Board under 5 U.S.C. § 7511(a)(1).
Mr. Ramirez also argues the Board has jurisdiction
over the action pursuant to 5 C.F.R. § 1201.3(c)(1)(i). Ap-
pellant’s Informal Br. at 5. Section 1201.3 is a regulation
that implements the Board’s statutory jurisdiction. The
specific regulation Mr. Ramirez cites explains that employ-
ees covered by a collective bargaining agreement must use
the negotiated grievance procedures in the agreement to
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RAMIREZ v. MSPB 5
resolve any action that could be appealed to the Board, ex-
cept for certain actions, including adverse actions under 5
U.S.C. § 7512. 5 C.F.R. § 1201.3(c)(1)(i). The Board’s ju-
risdiction under § 7512 is limited to individuals that qual-
ify as an employee under § 7511(a)(1). Because Mr.
Ramirez does not qualify as an employee as defined by the
statute, 5 C.F.R. § 1201.3(c)(1)(i) does not apply.
Mr. Ramirez does not otherwise allege he meets the re-
quirements of an employee. While we appreciate Mr.
Ramirez’s arguments that he was involuntarily demoted,
the Board was correct that it “does not have jurisdiction to
address all matters that are alleged to be incorrect or un-
fair.” S. Appx. 9. Accordingly, the Board properly dis-
missed Mr. Ramirez’s appeal for lack of jurisdiction.
CONCLUSION
We have considered Mr. Ramirez’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s dismissal for lack of
jurisdiction.
AFFIRMED
COSTS
No costs.
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