Ide v. Social Security Administration ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3285
CAROL L. IDE,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
___________________________
DECIDED: May 13, 2005
___________________________
Before CLEVENGER, RADER, and DYK, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board (Board) decided that it had no jurisdiction to
hear Carol Ide’s appeal of a personnel action, because she was not preference-eligible
and had therefore not worked in her position long enough to acquire eligibility to appeal
any such action to the Board. See Ide v. Soc. Sec. Admin., AT-0752-03-0379-I-1,
(M.S.P.B. Mar. 17, 2004). Because Ms. Ide has made a non-frivolous allegation, this
court reverses and remands.
I.
Carol Ide began working for the Social Security Administration as a Co-Op
Student Trainee, an excepted service position, on July 15, 2001 Fourteen months later
she resigned that position. In January 2003, Ms. Ide appealed to the Board, asserting
that her resignation had been coerced. Ms. Ide used the Board’s standard form for
appeals, Optional Form 283. On that form Ms. Ide checked “yes” in answer to the
question “Are you a veteran and/or entitled to the employment rights of a veteran?”
Those employment rights include eligibility for certain preferences. For example, a
preference eligible person becomes an “employee” entitled to Board review after one
year of employment; otherwise, two years are required. 5 U.S.C.
§ 7511(a)(1)(B)(i)(2000). An administrative judge in an initial decision found that the
Board had no jurisdiction to hear Ms. Ide’s appeal because she “is not preference
eligible, [and] had less than two years of current continuous service at the time of her
resignation.” Ide v. Soc. Sec. Admin., AT-0752-03-0379-I-1 (M.S.P.B. Mar. 27, 2003).
Ms. Ide petitioned for review of the administrative judge’s decision, asserting that
she was preference eligible and that she had twice submitted her DD214 Report of
Separation and SF15 preference eligibility forms to the Savannah, Georgia office of the
Social Security Administration. Nevertheless, without addressing the question of
preference eligibility, the Board made its initial decision final on March 17, 2004.
II.
Ms. Ide appeals the Board’s final decision that she is not eligible for Board review
of her personnel appeal. This court reviews without deference questions of Board
jurisdiction over a particular appeal. King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir.
1996). The petitioner establishes Board jurisdiction by making a non-frivolous allegation
of jurisdiction. Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687-88 (Fed. Cir. 1992);
Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002); Walley v. Dep’t
of Veterans Affairs, 279 F.3d 1010, 1018-19 (Fed. Cir. 2002).
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The record shows that Ms. Ide did assert, on both her original appeal and in her
petition for review, that she is preference-eligible. The SF-50 (Notification of Personnel
Action) forms for both her appointment and her resignation appear to indicate that she
has veterans’ status. Directly contradicting this testimony, the Government argues that
Ms. Ide did not assert a veterans preference at all during the initial Board proceedings,
and has provided no evidence of eligibility. The record of this case and the findings of
the administrative judge are insufficient for us to determine whether the petitioner or the
Government is correct. Nevertheless, petitioner’s allegations are not frivolous, and are
thus sufficient to establish jurisdiction. Accordingly, this court remands for further
proceedings on the merits.
On remand the petitioner should be permitted an opportunity to produce the
DD214, SF15, and military discharge documents to show her status. The Board should
adjudicate the merits of Ms. Ide’s case, including her preference eligibility. The burden
on Ms. Ide is to establish her claim by a preponderance of the evidence. Dick, 290 F.3d
at 1364.
04-3285 3