19 F.3d 1395 (Fed. Cir. 1994), 93-3152, Waldau v. Merit Systems Protection Bd.

Docket Nº:93-3152.
Citation:19 F.3d 1395
Party Name:Geoffrey J. WALDAU, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Case Date:March 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1395

19 F.3d 1395 (Fed. Cir. 1994)

Geoffrey J. WALDAU, Petitioner,



No. 93-3152.

United States Court of Appeals, Federal Circuit

March 16, 1994

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Geoffrey J. Waldau, argued pro se.

Eric D. Flores, Atty., Merit Systems Protection Bd., Washington, DC, argued for respondent. With him on the brief were Mary L. Jennings, Deputy Gen. Counsel and Martha B. Schneider, Asst. Gen. Counsel. Of counsel was Sharon Y. Eubanks and David M. Cohen, Attys., Dept. of Justice, Washington, DC.

Before ARCHER, MICHEL and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

Geoffrey J. Waldau petitions for review of the decision of the Merit Systems Protection Board (MSPB or Board), Docket No. DC0752910393-B-1, 56 M.S.P.R. 39, dismissing his appeal from the removal decision of the United States Postal Service (USPS) for lack of jurisdiction. We vacate the MSPB's decision on Waldau's status as a management employee, reverse the decision not to consider his status as a confidential employee, and remand on both grounds.


On February 12, 1991, the USPS issued its final decision effectuating petitioner's removal on several grounds, none of which is relevant to this appeal. Waldau, pro se, timely appealed this decision to the MSPB. On March 5, 1991, the Administrative Judge (AJ) assigned to the case informed Waldau via an Acknowledgement Order (Order) that he bore the initial burden of establishing Board jurisdiction over his appeal. Pertinent to the issues on appeal, the Order stated:

If there is a question as to whether your appeal is ... within the Board's jurisdiction, this Order gives you the opportunity to submit evidence to establish ... jurisdiction. If you further establish that there is a dispute as to facts which will affect [the AJ's] decision on the issue of ... jurisdiction, you are also entitled to a hearing....


Because you are a [USPS] employee, the Board may not have jurisdiction to decide your appeal. You must 1) be a preference-eligible employee, a management or supervisory employee or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity ... for the Board to exercise jurisdiction over your appeal. See 39 U.S.C. Sec. 1005(a) and 5 U.S.C. Sec. 2108.

You have the burden of proving that the Board has jurisdiction over your appeal. Accordingly I ORDER you to file evidence and argument to prove that this action is within the Board's jurisdiction....

(emphasis added). Waldau initially responded with argument unhelpful to assessing the Board's jurisdiction over his appeal. In response to a USPS motion to dismiss, however, Waldau argued that he was a "management," or "managerial," employee and listed various functions of his position that he considered to be support for his contention. Nonetheless, the AJ issued an initial decision on April 19, 1991, dismissing his appeal for lack of jurisdiction.

Waldau timely petitioned the full Board for review of the initial decision on the grounds

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that the AJ erred in dismissing his appeal for want of jurisdiction without holding a hearing on the issue. In his appeal, Waldau also argued that the agency had put the question of his status as an employee engaged in confidential personnel work ("confidential employee") into issue by its concession before the AJ that he was entrusted with much confidential information. Consequently, Waldau argued that he was entitled to a jurisdictional hearing on his status as both a management and a confidential employee. The USPS moved to strike Waldau's assertions as to his status as a confidential employee on the ground that he first raised the issue on appeal.

In its May 26, 1992, decision, the full Board ruled that

[a]n appellant is not required to prove Board jurisdiction to entitle him [sic] to a hearing; rather, he need only make a non-frivolous allegation that the Board has jurisdiction over his appeal. See, e.g., Alford v. Department of the Army, 47 M.S.P.R. 271, 274 (1991); Burgess v. Merit Systems Protection Board, 758 F.2d 641, 642-43 (Fed.Cir.1985).

In light of Waldau's submitted evidence, the Board concluded that Waldau's "argument concerning jurisdiction was non-frivolous because it was based on more than mere conclusory allegations," and that the AJ erred in requiring Waldau to prove his status as a management employee, rather than requiring him merely to make a nonfrivolous allegation of jurisdiction. Waldau v. United States Postal Serv., 54 M.S.P.R. 193, 194-195 (1992). Accordingly, the Board

remand[ed] this case to the [AJ] for a hearing and the issuance of a new initial decision. If the [AJ] finds that the Board has jurisdiction over the appellant's case, she should proceed to decide the merits of the ... appeal.

Id. at 195 (footnote omitted). Because of the remand order, the Board found it "unnecessary" both to decide whether it properly could consider Waldau's claim that he was also a confidential employee, or to rule on the government's motion to strike Waldau's assertions on that issue.

On remand, Waldau refined his initial claim in a prehearing submission, arguing that the Board had jurisdiction over his case because he was both a management employee and a confidential employee. The AJ, however, informed the parties during a prehearing telephonic conference that the jurisdictional hearing would be limited solely to whether Waldau qualified as a management employee. The AJ reasoned that this limitation was necessary because the question whether Waldau engaged in personnel work in other than a purely nonconfidential clerical capacity had not been raised, nor was it considered, before the AJ's initial dismissal, and "because the Board's order remanding the case [did] not appear to expand upon the issue decided in the initial decision." Waldau v. United States Postal Serv., No. DC0752910393-B-1, slip op. at 1 (MSPB June 23, 1992) (conference summary).

After holding a limited hearing on the jurisdictional issue, the AJ concluded in her September 8, 1992, decision that Waldau had failed to demonstrate that he was indeed a managerial employee, and thus again dismissed the appeal for lack of jurisdiction. The AJ reasoned, in part, that "[t]he persuasiveness of [Waldau's] statements and testimony concerning these examples of [his] policy decision[making] was diminished by the fact that there was no showing that [he] had final signatory authority concerning any of the decisions." Waldau v. United States Postal Serv., No. DC0752910393-B-1, slip op. at 3 (MSPB Sept. 8, 1992). The AJ further noted that "many of the policy decisions [Waldau] claimed to have made were actually issued over the signature of" a supervisor. Id. at 4. This initial decision became final when the full Board denied Waldau's petition for review on December 18, 1992. Waldau, again pro se, timely appealed to this court.

On appeal, Waldau reiterates factual details regarding each of his responsibilities and argues that these details demonstrate that he qualifies as a management employee and that therefore the Board has jurisdiction to hear the merits of his appeal. In particular, Waldau argues that he is entitled to status as a manager for two reasons: because his position is vested with the actual

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authority to engage in managerial activity and because, even absent such authority, management's acceptance of his many policy recommendations demonstrates his alignment with management and his consequent status as a de facto manager. Waldau also asserts that the AJ committed legal error in deciding the jurisdictional issue, arguing that although he lacked "final signatory authority concerning any decisions," he nevertheless qualifies as a manager under National Labor Relations Board (NLRB) and Supreme Court precedent. Finally, Waldau argues that the Board erred in denying him a hearing on whether he qualifies as a confidential employee.


Under the Postal Service Employees Appeal Rights Act, Pub.L. No. 100-90, 101 Stat. 673 (1987) (codified as amended at 39 U.S.C. Sec. 1005(a)(4) (1988)), the MSPB lacks jurisdiction over any appeal from a personnel action taken against a non-preference-eligible USPS employee, see 5 U.S.C. Secs. 7511(a)(1)(B)(ii), 2108(3) (1988 & Supp. III 1991), unless that person

(I) is in the position of a supervisor or a management employee in the [USPS], or is an employee of the [USPS] engaged in personnel work in other than a purely nonconfidential clerical capacity; and

(II) has completed 1 year of current continuous service in the same or similar positions.

39 U.S.C. Sec. 1005(a)(4)(A)(ii) (emphasis added).

Under 5 U.S.C. Sec. 7703(c) (1988), we review decisions of the Board, inter alia, to determine if they are "otherwise not in accordance with law." Whether jurisdiction exists is a question of law that we review de novo. See, e.g., Dehne v. United States, 970...

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