Before Newman, Plager, and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Appealed from: Merit Systems Protection Board
Dissenting opinion filed by Circuit Judge NEWMAN.
James M. Carrier petitions for review of the decision of the Merit Systems Protection Board (Board) dismissing his appeal for lack of jurisdiction. See Carrier v. United States Postal Serv., Docket No. DC-0752-93-0121-M-1 (May 21, 1998). We affirm.
James M. Carrier retired from the postal service on November 20, 1992, as part of the 1992-1993 agency-wide reorganization of the service. Shortly thereafter, he filed an appeal to the Board, challenging his retirement as involuntary. An administrative Judge of the Board held that Carrier had failed to make a non-frivolous allegation of involuntariness and dismissed his appeal on that ground. See Carrier v. United States Postal Serv., Docket No. DC-0752-93-0121-I-1 (Feb. 16, 1993) (Carrier I). Carrier appealed that decision to the Board; the Board vacated that decision and remanded the case for adjudication. See Carrier v. United States Postal Serv., 65 M.S.P.R. 54 (1994) (Carrier II).
On the remand after Carrier II, the administrative Judge again dismissed Carrier's appeal for want of jurisdiction. This time, however, it was on the ground that Carrier had failed to prove that he was one of the managerial-level officials of the postal service over whom the statutes authorized the Board to take jurisdiction in personnel matters. See Carrier v. United States Postal Serv., Docket No. DC-0752-93-0121-B-1 (Jan. 25, 1995) (Carrier III). The Board denied review of that decision on the ground that the appeal did not meet the criteria for review. See Carrier v. United States Postal Serv., 67 M.S.P.R. 398 (1995) (Table) (Carrier IV).
Carrier brought Carrier IV to this court. In the course of reviewing the appeal, we noticed that the Board had not determined whether Carrier is barred as a matter of law from membership in a collective bargaining unit. We viewed that as pertinent to the question of jurisdiction, because we held in McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193 (Fed. Cir. 1993), that the Board has jurisdiction over an appeal from an employee of the postal service who is ineligible, as a matter of law, from membership in a collective bargaining unit. This holding in McCandless follows from the fact that 39 U.S.C. § 1202 bars from bargaining units those postal service employees who are managers, supervisors, or confidential-personnel employees. In that case, the employee, because he falls in one of these categories, has appeal rights to the Board under 39 U.S.C. § 1005(4)(A)(ii).
McCandless held that the statutory categories of manager, supervisor, and confidential-personnel employees in section 1202 and section 1005(4)(A)(ii) must be construed consistently. Thus, if a postal employee is barred as a matter of law from bargaining unit membership because the employee falls in one of these barred categories under section 1202, the employee by statutory definition has appeal rights to the Board under section 1005(4)(A)(ii). See McCandless, 996 F.2d at 1201. This ensures that there is no otherwise undefined "third group" of postal service employees who are both precluded as a matter of law from joining a bargaining unit and at the same time are precluded from seeking Board review of adverse personnel actions, see Bolton v. Merit Sys. Protection Bd., 154 F.3d 1313, 1320 (Fed. Cir. 1998), and, assuming an available bargaining unit providing the non-managerial employee with an appeal route for adverse agency personnel actions, this ensures an appeal mechanism for all employees.
Accordingly, we vacated the Board's decision in Carrier IV and remanded the case for the limited purpose of adjudication of the issue of whether Carrier is barred from membership in a collective bargaining unit as a matter of law. See Carrier v. Merit Sys. Protection Bd., 79 F.3d 1165 (Fed. Cir. 1996) (Table) (Carrier V). This required the Board to consider whether, from the perspective of section 1202, Carrier is a manager, supervisor, or confidential-personnel employee.
On remand from Carrier V, the administrative Judge found that Carrier had not alleged that he was a supervisory or confidential-personnel employee, and found that Carrier had failed to prove that he was managerial employee. The AJ further held that Carrier had not proved that he was barred as a matter of law from membership in a collective bargaining unit -- while a notation in Carrier's position description indicated that it was a non-bargaining position, the administrative Judge found that Carrier had not made any factual showing that he was precluded from membership in a collective bargaining unit. The administrative Judge noted favorably the agency's argument that unrepresented employees who are not ineligible as a matter of law may seek union representation. Once again, Carrier's appeal was dismissed for want of jurisdiction. Carrier v. United States Postal Serv., Docket No. DC-0752-93-0121-M-1 (Aug. 13, 1996) (Carrier VI).
The Board granted Carrier's petition for review of the AJ's decision in Carrier VI. With regard to whether Carrier had proven that he was not entitled as a matter of law to membership in a collective bargaining unit, the Board affirmed the decision in Carrier VI. As to whether Carrier had proven that he is a management employee, the Board affirmed the decision in Carrier VI that Carrier had not made such a showing. Also, the Board, noting that Carrier had alleged supervisory status, held that Carrier failed to prove that he fit in the category of supervisors. The Board, finally, held that Carrier had waived an opportunity to prove that he was a confidential-personnel employee, and Carrier now agrees that he has waived that point. Consequently, the dismissal of Carrier's appeal for want of jurisdiction became the final decision of the Board. Carrier v. Merit Sys. Protection Bd., Docket No. DC-0752-93-0121-M-1 (May 21, 1998) (Carrier VII). Carrier petitioned this court for review, and we have jurisdiction under 28 U.S.C. 1295(a)(9) (1994).
We have limited review of the decisions of the Board. We may not disturb a decision of the Board unless we hold it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or unsupported by ...