Abel J. Colunga, Petitioner, v. United States Postal Service, Respondent, 909 F.2d 1496 (Fed. Cir. 1990)

Abel J. Colunga petitions for review of the decision of the Merit Systems Protection Board (board), No. SF007528810298 (November 8, 1988), dismissing his appeal for lack of jurisdiction. We affirm.

OPINION

At the time of his removal by the United States Postal Service, the board found that Colunga had not completed one year of current continuous service in positions that were the same or similar, which is required under 5 U.S.C. § 7511(a) (1) (B) for the board to have jurisdiction. Whether Colunga's positions as a mail handler and a distribution clerk are the same or similar positions is a question of fact. See Mathis v. United States Postal Serv., 865 F.2d 232, 235 (Fed. Cir. 1988), quoting Wafford v. United States Postal Serv., 34 M.S.P.R. 691, 696 (1987) (" [W]hat is critical to our determination here is the fact that appellant served his last year with the Postal Service in two distinct lines of work.").

Under our standard of review we must affirm unless the decision is found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1988). We have considered the arguments presented by Colunga and are convinced that the board's decision is correct as a matter of law and supported by substantial evidence. See Hayes v. Department of Navy, 727 F.2d 1535 (Fed. Cir. 1984).