Ex-convicts, Veteran’s Preference, and Rehiring A Former Federal Employee

Searching for an angle in his appeal, this former Postal Service employee argued the agency erroneously believed it would not hire an ex-felon. He also argued he should get priority consideration because he was a veteran. But a federal court finds the MSPB did not have jurisdiction in his appeal.

A former mail handler who resigned apparently to serve several years in prison tried unsuccessfully to get the agency to re-hire him when he was released. He claims that the Postal Service told him it did not hire ex-felons but the Labor Department told him that USPS could hire him if it wanted to. In Fortenberry v. Merit Systems Protection Board, C.A.F.C. No. 2008-3110 (nonprecedential), 7/11/08, the appeals court now holds that the Merit Systems Protection Board was correct when it determined it had no jurisdiction over Fortenberry’s appeal.

The Board’s Administrative Judge concluded that failure to reemploy an ex-felon is not an appealable action. (Opinion, p. 2) As for Fortenberry’s additional argument that as a veteran he had a right to priority consideration for reemployment, the AJ gave Fortenberry a chance to supplement his claim with evidence that would establish jurisdiction. He did not provide the information requested, so the Board dismissed this part of his appeal as well. Fortenberry took his case to court. (p. 3)

Apparently Fortenberry’s appeal to the Federal Circuit centered on the USPS mistakenly believing that ex-felons may not be employed by the agency. Unfortunately for him, the court does not find this a sound basis for his challenge: “That question—whether ex-felons may or may not be employed by USPS—is not the issue before us, however. Even if Fortenberry were correct in his assertion…USPS’s alleged misinterpretation of applicable labor laws still does not create a Board-appealable action.” (p. 4)

As for his veterans reemployment claim, the court points out that under the Veterans Employment Opportunity Act of 1998, Fortenberry must show that he appealed to the Secretary of Labor within 60 days of the alleged violation. He failed to show this. In fact he does not even claim that he ever filed a complaint with DOL. Therefore, the Board had no jurisdiction and Fortenberry is out of luck. (p. 4)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.