Shante R. Hawkins v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANTE R. HAWKINS, DOCKET NUMBER
Appellant, DC-0752-16-0471-I-1
v.
DEPARTMENT OF VETERANS DATE: September 14, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shante R. Hawkins, Virginia Beach, Virginia, pro se.
Timothy M. O’Boyle, Esquire, Hampton, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective November 1, 2015, the agency appointed the
nonpreference-eligible appellant to an excepted-service position as a Nursing
Assistant at the Hampton Veterans Affairs Medical Center. Initial Appeal File
(IAF), Tab 1 at 1, Tab 4 at 15-16. The appointment was subject to a 1-year trial
period. IAF, Tab 4 at 15. Prior to the completion of her trial period, however,
the agency terminated the appellant effective April 1, 2016. Id. at 8-9. The
termination notice cited the appellant’s conduct as the reason for her termination.
Id. at 9.
¶3 The appellant filed a timely Board appeal challenging her termination and
requested a hearing. IAF, Tab 1 at 2-3, 5. The administrative judge issued an
acknowledgment order, which provided the appellant with jurisdictional notice of
the requirements for establishing that she was an “employee” with Board appeal
rights under 5 U.S.C. chapter 75, and ordered her to submit evidence and
argument raising a nonfrivolous allegation of jurisdiction over her appeal within
15 calendar days. IAF, Tab 3 at 2-6. The appellant failed to respond to the
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order, and the agency moved to dismiss the appeal for lack of jurisdiction. IAF,
Tab 4 at 5.
¶4 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID).
She found that the appellant failed to raise a nonfrivolous allegation that she was
an employee with Board appeal rights under 5 U.S.C. chapter 75. ID at 3-4. The
appellant has filed a petition for review of the initial decision, and the agency has
responded in opposition to the petition for review. Petition for Review (PFR)
File, Tabs 2, 5. 2
¶5 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant who makes a
nonfrivolous allegation of jurisdiction is entitled to a hearing at which she must
then prove jurisdiction by a preponderance of the evidence. Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc); see 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶6 As a nonpreference-eligible individual in the excepted service, the
appellant was entitled to appeal to the Board if and only if, at the time of her
termination, she was an “employee” under 5 U.S.C. § 7511(a)(1)(C). Martinez v.
Department of Homeland Security, 118 M.S.P.R. 154, ¶ 5 (2012); Ellefson v.
Department of the Army, 98 M.S.P.R. 191, ¶ 8 (2005). That section defines an
employee as an individual: (1) who is not serving a probationary or trial period
under an initial appointment pending conversion to the competitive service; or (2)
2
On review, the appellant also filed a separate pleading, consisting of copies of
documents already contained in the record below. PFR File, Tab 3; IAF, Tab 4
at 9-11, 15. In addition, approximately a month after the initial decision was issued,
the appellant filed a pleading with the Board’s regional office, which challenged the
merits of the agency’s termination decision, and included evidence already contained in
the record. PFR File, Tab 1; IAF, Tab 4 at 12. The regional office forwarded the
pleading to the Office of the Clerk of the Board, which included the pleading in the
record on review. PFR File, Tab 4.
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who has completed 2 years of current continuous service in the same or similar
positions in an Executive agency under other than a temporary appointment
limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i)-(ii).
¶7 Here, there is no indication, and the appellant does not allege, that she held
an initial appointment pending conversion to the competitive service. IAF, Tab 1
at 1, 5, Tab 4 at 8, 15-16; see 5 U.S.C. § 7511(a)(1)(C)(i). Thus, the only
definition of “employee” the appellant could satisfy is “an individual in the
excepted service” found at 5 U.S.C. § 7511(a)(1)(C)(ii), i.e., a nonpreference
eligible who has completed 2 years of current, continuous service in the same or
similar position. The administrative judge correctly determined, however, that
the appellant failed to raise a nonfrivolous allegation that she completed 2 years
of service in the same or similar positions. ID at 2-3; see 5 U.S.C.
§ 7511(a)(1)(C)(ii). It is undisputed that the agency terminated the appellant’s
employment before she completed 2 years of service in her Nursing Assistant
position. IAF, Tab 4 at 8, 15-16. The appellant does not allege that she had any
prior Federal service, and the Standard Form 50 (SF-50) documenting her
appointment reflects a service computation date of November 1, 2015, indicating
that she did not have any prior Federal service. Id. at 15. Thus, the
administrative judge correctly found that the appellant failed to raise a
nonfrivolous allegation that she was an “employee” with the right to appeal her
termination to the Board under 5 U.S.C. chapter 75. ID at 4.
¶8 On review, the appellant does not challenge the administrative judge’s
jurisdictional findings, but instead raises arguments regarding the merits of the
agency’s termination decision. PFR File, Tabs 1-2. Specifically, she contends
that she was “targeted” by her supervisor after an incident in which a patient
assaulted and injured her. PFR File, Tab 2 at 5. She also asserts that a doctor
who reported issues with her conduct never intended for her to be terminated.
PFR File, Tab 1 at 2, Tab 2 at 5. However, because the appellant has failed to
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meet her jurisdictional burden, we will not address her arguments concerning the
merits of her termination. See Schmittling v. Department of the Army, 219 F.3d
1332, 1337 (Fed. Cir. 2000) (finding that a decision on the merits would be a
nullity in the absence of Board jurisdiction); Sapla v. Department of the
Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that an appellant’s arguments on
review regarding the merits of an agency action were not relevant to whether the
Board had jurisdiction over an appeal).
¶9 Finally, the appellant contends that the agency did not provide her sufficient
time to resign instead of being terminated. PFR File, Tab 2 at 5.
However, 5 C.F.R. § 315.806(c), which provides that a probationary employee
terminated for pre-appointment reasons may appeal an agency’s failure to
provide advance notice and certain other procedural protections, is not applicable
to excepted service employees such as the appellant. Barrand v. Department of
Veterans Affairs, 112 M.S.P.R. 210, ¶ 13 (2009); 5 C.F.R. §§ 315.805,
315.806(c). Further, absent an otherwise appealable action, the Board lacks
jurisdiction over claims that the agency committed harmful procedural error in
effectuating the appellant’s termination. See Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the absence of an
otherwise appealable action, the Board lacked jurisdiction over claims of harmful
error).
¶10 In sum, for these reasons, after considering the appellant’s arguments on
review, we find that the administrative judge properly dismissed the appeal for
lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.