Stephen St. Pierre v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN WILLIAM ST. PIERRE, DOCKET NUMBER
Appellant, PH-0432-21-0364-I-1
v.
DEPARTMENT OF JUSTICE, DATE: January 27, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Stephen William St. Pierre, Gray, Maine, pro se.
Roselee Dodson, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision, and REMAND this appeal to the Northeastern Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GS-13 Special Agent with the Federal
Bureau of Investigation (FBI). Initial Appeal File (IAF), Tab 6 at 21. Effective
September 9, 2021, the appellant was removed from his position based on the
charge of unacceptable performance. Id. at 21-23.
¶3 He appealed his removal to the Board and marked on his appeal form that
he was not entitled to veterans’ preference. IAF, Tab 1 at 1. The administrative
judge informed the appellant how to make a nonfrivolous allegation that the
agency’s action was within the Board’s jurisdiction and ordered him to submit
evidence and argument on that issue. IAF, Tab 2 at 2 -5. The appellant did not
respond, but the agency moved to dismiss the appeal, observing that an FBI
employee only qualified as an “employee” with the right to appeal to the Board if
he was a preference eligible as defined in 5 U.S.C. § 2108 and the appellant did
not fall in that category. IAF, Tab 4 at 6-7. The administrative judge issued an
order directing the appellant to show how he qualified as a preference eligible
under the definition in 5 U.S.C. § 2108. IAF, Tab 8. The appellant responded
that he is a preference eligible because he served in the U.S. Air Force from 1992
to 1999 and provided a DD Form 214 (Certificate of Release or Discharge from
Active Duty) documenting his service dates from February 12, 1992, to
May 1, 1999. IAF, Tab 9 at 1-2. The administrative judge issued two additional
orders directing the appellant to show how he qualified as a preference eligible
under the definition in 5 U.S.C. § 2108. IAF, Tabs 11-12. The appellant did not
respond.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant’s general statement of milita ry
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service and his DD Form 214 did not provide a basis for finding that he met the
definition of a preference eligible in 5 U.S.C. § 2108. ID at 3-4. The
administrative judge also noted the appellant was provided with three
opportunities to show that he met the definition of a preference eligible under
5 U.S.C. § 2108, but he did not do so. ID at 3-4.
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He claims preference eligibility because , in
addition to the service from 1992 to 1999 he raised before the administrative
judge, he was on active duty military service from Septe mber 24, 1991, to
February 11, 1992, and he is a disabled veteran. Id. at 1. With his petition for
review, he provides new documents in support of his claim of preference
eligibility. Id. at 2-8. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An FBI employee has the right to appeal to the Board if he is a preference
eligible who meets the requirements of 5 U.S.C. § 7511(a)(1)(B). 5 U.S.C.
§ 7511(b)(8); Parkinson v. Department of Justice, 874 F.3d 710, 713
(Fed. Cir. 2017) (en banc); Patterson v. Department of Justice, 52 M.S.P.R. 651,
653-54 (1992). 5 U.S.C. § 7511(a)(1)(B) defines an “employee” as a preference
eligible in the excepted service who has completed 1 year of current, continuous
service in the same or similar positions. The record reflects that the appellant
was employed as a Special Agent with the FBI since 2004. IAF, Tab 6 at 84,
91-93. As the appellant has completed more than 1 year of current continuous
service in the same position, his right to appeal to the Board hinges on whether he
was a preference eligible.
¶7 For purposes of this appeal, a preference eligible means a veteran or a
disabled veteran. 5 U.S.C. § 2108(3). Under Title 5 of the United States Code, a
veteran is an individual who has served on active duty in the arm ed forces during
a war, in a campaign or expedition for which a campaign badge has been
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authorized, or during statutorily specified time periods including from
August 2, 1990, to January 2, 1992, and was discharged under honorable
conditions. 5 U.S.C. § 2108(1). A disabled veteran is an individual who served
on active duty in the armed forces, was separated under honorable conditions, and
has established the present existence of a service-connected disability or is
receiving compensation, disability retirement benefits, or a pension because of a
public statute administered by the Department of Veterans Affairs (DVA) or a
military department. 5 U.S.C. § 2108(2).
¶8 The administrative judge correctly found that the appellant failed to allege
below that he was a preference eligible under 5 U.S.C. § 2108. 2 ID at 3-4.
However, for the first time on review, the appellant provides his DD Form 214
documenting his status as an Officer Trainee in the U.S. Air Force from
September 24, 1991, to February 11, 1992, and a June 9, 2021 DVA letter
indicating that he is a veteran receiving compensation for a service-connected
disability. PFR File, Tab 1 at 3, 8. The appellant notes that he was unable to
submit the DD Form 214 earlier because it is an older military record secured in a
storage area unavailable for access and review. Id. at 1.
¶9 The Board will generally not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). Although it does not appear that this
evidence was unavailable before the record closed below, it implicates the issue
of the Board’s jurisdiction, and therefore, we have considered it. See Poole v.
2
The appellant’s DD-214 submitted to the administrative judge reflects that he served
on active duty with the U.S. Air Force from February 12, 1992, to May 1, 1999, and
that he was honorably discharged. IAF, Tab 9 at 2. His service does not confer
preference eligible status, however, because the record does not reflect that the
appellant served during a war or in a campaign or expedition for which a campaign
badge has been authorized, or that he served during one of the statutorily specified
periods. The appellant’s SF-50 indicated that he did not have veterans’ preference and
the appellant did not allege below that he was a disabled veteran. IAF, Tab 6 at 21.
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Department of the Army, 117 M.S.P.R. 516, ¶ 9 (2012) (stating that Board
jurisdiction is always before the Board and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding); Turner v. U.S.
Postal Service, 90 M.S.P.R. 385, ¶ 8 (2001) (considering newly submitted
evidence that an employee was a preference eligible because it was relevant to the
jurisdictional issue).
¶10 The appellant argues that he is a veteran as defined in 5 U.S.C.
§ 2108(1)(C), because he served on active duty in the armed forces in the
statutorily specified time period of August 2, 1990, to January 2, 1992. PFR File,
Tab 1 at 1. The term “veteran” as defined in 5 U.S.C. § 2108(1)(C) applies only
to individuals whose military service included a period of “active duty as defined
by [38 U.S.C. § 101(21)].” Active duty as relevant for this appeal is defined as
full-time duty in the armed forces, other than active duty for training. 3 38 U.S.C.
§ 101(21)(A); Hesse v. Department of the Army, 104 M.S.P.R. 647, ¶ 7 (2007).
Because the DD Form 214 the appellant submitted on review shows that he was
an Officer Trainee in the U.S. Air Force from September 24, 1991, to
February 11, 1992, PFR File, Tab 1 at 3, his service during that time period does
not constitute active duty as defined by 38 U.S.C. § 101(21)(A). Thus, the
appellant does not qualify as a preference eligible on that basis.
¶11 The appellant also argues that he is a disabled veteran as defined in
5 U.S.C. § 2108(2). PFR File, Tab 1 at 1. There is no dispute that the appellant
served on active duty in the armed forces and that he was separated under
honorable conditions. IAF, Tab 9 at 2. The Board has held that the plain
language of the statute limiting the definition of a veteran to individuals who
served on active duty for purposes other than training does not apply to the
definition of “disabled veteran” in 5 U.S.C. § 2108(2). Hesse, 104 M.S.P.R. 647,
¶ 7. Therefore, the issue is whether the appellant has established the present
3
There is no indication that the appellant was a cadet at the Air Force Academy while
serving as an Officer Trainee, and thus, 38 U.S.C. § 101(21)(D) has no application here.
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existence of a service-connected disability or is receiving compensation,
disability retirement benefits, or a pension because of a public statute
administered by the DVA or a military department. 5 U.S.C. § 2108(2).
¶12 The June 9, 2021 DVA letter states that the appellant has a service-
connected disability (rated at 40%) and that he is receiving monthly compensation
for that service-connected disability. PFR File, Tab 1 at 8. Significantly, the
DVA letter also states that the agency is providing the letter for the appellant to
use in applying for benefits, such as civil service preference. Id. Accordingly,
we find that the appellant nonfrivolously alleged that he is a preference eligible
as defined in 5 U.S.C. § 2108(2). See Badana v. Department of the Air Force,
104 M.S.P.R. 182, ¶ 10 (2006) (finding that a DVA disability rating constituted a
nonfrivolous allegation that an appellant was entitled to veterans’ preference);
Santiago v. U.S. Postal Service, 62 M.S.P.R. 41, 43 (1994) (finding that a letter
submitted for the first time on review certifying that the DVA records showed
that the appellant had a service-connected disability required remand to determine
whether he was a preference eligible).
¶13 If the administrative judge determines that the appellant established by
preponderant evidence that he is a preference eligible as defined in 5 U.S.C.
§ 2108(2), he shall consider whether the appellant has satisfied the requirements
of 5 U.S.C. § 7511. If the administrative judge finds that the Board has
jurisdiction over this case, he shall then adjudicate the appeal on the merits,
including holding the hearing requested by the appellant, and issue a new initial
decision. If the administrative judge finds no jurisdiction, then the appeal may be
dismissed on that basis.
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ORDER
¶14 For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.