Jessie Nicholas Jeune v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSIE NICHOLAS JEUNE, DOCKET NUMBER
Appellant, PH-315H-15-0224-I-1
v.
DEPARTMENT OF VETERANS DATE: September 11, 2015
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nancy Gail Matza, Esquire, Somerville, Massachusetts, for the appellant.
Jonathan Smith, Bedford, Massachusetts, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the petition for review and REMAND the case to
the regional office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal challenging the agency’s decision to terminate
her career-conditional appointment in the competitive service as a Supervisory
Financial Management Specialist prior to the completion of her 1-year
probationary period. Initial Appeal File (IAF), Tab 1 at 6, 8. In her appeal, the
appellant raised a claim of whistleblower reprisal, alleged that the agency ignored
her veterans’ preference, and argued that her termination was not in accordance
with the law. Id. at 6. The appellant also requested a hearing. Id. at 2.
¶3 The administrative judge issued an acknowledgment order explaining to the
appellant the limited appeal rights afforded to probationary employees under
5 C.F.R. §§ 315.801, 805, and 806. IAF, Tab 2 at 2-3. In addition, the
administrative judge informed the appellant of the criteria for qualifying as an
“employee” with appeal rights under chapter 75 and ordered her to file evidence
and argument to establish why her appeal should not be dismissed for lack of
jurisdiction. Id. at 3-4. The appellant did not respond, and the agency moved to
dismiss the appeal. IAF, Tab 6.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1, 4. He found that the appellant failed to show that her alleged
prior service would support finding jurisdiction over her appeal. ID at 4. He also
found that the appellant did not dispute that the agency terminated her
appointment prior to the completion of her 1-year probationary period. ID at 3.
He further found that the appellant did not allege that the agency terminated her
for partisan political reasons or based on marital status discrimination, which was
the only basis for finding Board jurisdiction over a probationer’s appeal of a
termination for postappointment reasons. ID at 3. In reaching his decision, the
administrative judge noted that the appellant failed to respond to either the
agency’s motion to dismiss her appeal for lack of jurisdiction or to the
acknowledgement order. IAF, Tab 7 at 2.
3
¶5 The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. 2 In her petition, the appellant reasserts her
whistleblower retaliation claim under 5 U.S.C. § 2302 and her claim that the
agency’s action was not in accordance with the law. Id. at 4. For the first time
on review, she also claims: harmful procedural error; retaliation for
nonwhistleblowing activity protected under 5 U.S.C. § 2302; violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified at 38 U.S.C. §§ 4301-4333) (USERRA); and violation of a law or
regulation relating to the Veterans Employment Opportunities Act of 1998
(VEOA). 3 Id. In support of her petition, the appellant attached a copy of the
agency’s January 20, 2015 termination letter, her February 20, 2015 appeal, and
the April 8, 2015 initial decision dismissing her appeal for lack of jurisdiction.
PFR File, Tab 1. The agency filed a response in opposition to her petition, and
the appellant replied. PFR File, Tabs 3-4.
¶6 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). Generally, the Board lacks
jurisdiction over a probationary employee’s appeal from a termination during the
probationary period; however, the Board may consider an appeal when the
employee alleges that her termination was based on partisan political reasons or
marital status. See 5 C.F.R. § 315.806(b). A probationary employee also may
appeal based on procedural deficiencies but only if the agency terminated her for
reasons arising before her appointment. 5 C.F.R. § 315.806(c).
2
After the administrative judge issued the initial decision on April 8, 2015, the
appellant filed another appeal with the Board’s regional office on May 5, 2015. IAF,
Tab 1. The regional office forwarded the pleading to the Office of the Clerk of the
Board, which reviewed the filing and processed the appellant’s May 5, 2015 pleading as
a petition for review of the April 8, 2015 initial decision. PFR File, Tab 2 at 1.
3
In initially challenging her termination, the appellant argued that the agency ignored
her veterans’ preference; however, she did not otherwise indicate that she was seeking
corrective action under VEOA or USERRA. IAF, Tab 1 at 6.
4
¶7 Here, the appellant does not challenge the administrative judge’s finding
that the agency terminated her during her probationary period for
postappointment reasons, and she does not allege that her termination was for
partisan political reasons or due to marital status discrimination. See ID at 3.
Moreover, the appellant does not dispute the administrative judge’s finding that
she does not qualify as an “employee” with appeal rights under 5 U.S.C.
chapter 75. ID at 3-4. We therefore discern no reason to disturb these findings.
¶8 We remand this appeal for further adjudication of the jurisdictional issue
because the appellant raised a claim of whistleblower retaliation in her appeal,
and the administrative judge did not inform her about what is required to establish
jurisdiction under the criteria applicable to an individual right of action (IRA)
appeal. IAF, Tab 1 at 6; PFR File, Tab 1 at 4; see Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue). Neither the acknowledgment order, the agency’s
motion to dismiss the appeal, nor the initial decision informed the appellant of the
jurisdictional requirements and burdens of proof regarding her possible IRA
appeal.
¶9 Because the administrative judge never informed the appellant as to the
requirements for establishing jurisdiction over her termination as an IRA appeal,
and he failed to address her whistleblower retaliation claim in the initial decision,
we must remand this appeal to the regional office for further adjudication. See
Stauner v. Department of the Interior, 86 M.S.P.R. 179, 182 (2000); Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (finding that an
initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests). On remand, the administrative judge shall explicitly inform
the appellant about what she must show to establish Board jurisdiction over an
5
IRA appeal and the additional claims she raised on review under VEOA and
USERRA. 4 After affording the parties an opportunity to submit evidence and
argument on these issues, the administrative judge shall decide whether the Board
has jurisdiction over this appeal and, if so, adjudicate the merits of this appeal
after holding the requested hearing. The administrative judge shall then issue a
new initial decision that addresses all of the issues necessary for adjudication of
this case, as well as any issues properly raised by the parties. In his remand
initial decision, the administrative judge may incorporate his prior finding that
the Board has no jurisdiction over this appeal under 5 U.S.C. chapter 75 or
5 C.F.R. § 315.806. ID at 3-4.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
4
As previously noted, the appellant explicitly alleged violations of VEOA and
USERRA for the first time on review. PFR File, Tab 1 at 4. Such claims may provide a
basis for finding Board jurisdiction over this appeal. Because the issue of jurisdiction
may be raised at any time during a proceeding, on remand the administrative judge
should consider these claims in deciding the jurisdictional issue. See Morgan v.
Department of the Navy, 28 M.S.P.R. 477, 478 (1985).