Jared Miller v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JARED D. MILLER, DOCKET NUMBER
Appellant, CH-315H-19-0524-I-1
v.
DEPARTMENT OF VETERANS DATE: June 27, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jared D. Miller , New London, Wisconsin, pro se.
John Jakubiak , Esquire, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous 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. Except as expressly MODIFIED to find that the appellant has
not made a nonfrivolous allegation of Board jurisdiction under 5 U.S.C. § 7511(a)
(1)(B), we AFFIRM the initial decision.
BACKGROUND
On October 2, 2016, the appellant, a preference eligible, was appointed
pursuant to a Veterans’ Recruitment Appointment (VRA) to the excepted-service
position of Police Officer. Initial Appeal File (IAF), Tab 12 at 60. He resigned
from that position, effective September 15, 2018. Id. at 53. Effective January 6,
2019, the agency appointed the appellant pursuant to a VRA to an
excepted-service position of Police Officer, subject to the completion of a 2-year
trial period. Id. at 52. On July 15, 2019, the agency terminated him for “failure
to qualify during [his] trial period” and “off duty misconduct.” 2 Id. at 15, 18.
The appellant appealed his probationary termination to the Board. IAF,
Tab 1. In a jurisdictional order, the administrative judge set forth the
jurisdictional burdens over a probationary termination appeal for an employee in
2
The agency did not specify what it considered to be “off-duty misconduct” in the
notice of termination; however, the record reflects that the appellant was arrested while
on duty for alleged domestic-related battery during his trial period. IAF, Tab 12 at 21,
24-27, 34-38.
3
the excepted service under 5 U.S.C. § 7511(a)(1)(B)-(C) and informed the
appellant of the limited appeal rights available to an employee in the competitive
service under 5 C.F.R. §§ 315.805-.806. IAF, Tab 9. Without holding the
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 4. The
administrative judge found that the appellant had no statutory right of appeal
because he did not serve 2 consecutive years in an other than temporary position
limited to 2 years or less. ID at 3. Because the appellant was appointed under the
VRA, the administrative judge considered the appellant’s contention that the
agency violated 5 C.F.R. §§ 315.805-.806. ID at 3-4. The administrative judge
found that the appellant had no regulatory right of appeal because he did not
nonfrivolously allege that he was terminated for preappointment reasons or that
the agency engaged in marital status discrimination. ID at 4-5.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. 3 The agency has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 U.S.C. § 7511(a)(1)(B).
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. LeMaster v. Department of
Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 (2016). An appellant has the burden of
establishing jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). An
appellant is entitled to a jurisdictional hearing if he raises a nonfrivolous
allegation of Board jurisdiction. Liu v. Department of Agriculture, 106 M.S.P.R.
178, ¶ 8 (2007).
3
With his petition for review, the appellant has provided emails he sent and received
from the office of Senator Ron Johnson regarding his probationary termination. PFR
File, Tab 1 at 6-8. We have not considered this evidence because it is not new. IAF,
Tab 4 at 5-6; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980)
(stating that evidence that is already a part of the record is not new).
4
Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the
definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
challenge his removal from Federal service by filing an appeal with the Board.
See 5 U.S.C. §§ 7512(1), 7513(d). The definition of an “employee” includes a
preference eligible in the excepted service who has completed 1 year of current
continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B);
Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 14 (2011). The
term “current continuous service” means a period of employment, either in the
competitive or excepted service, that immediately precedes an adverse action
without a break in Federal civilian employment of a workday. Maibaum,
116 M.S.P.R. 234, ¶ 14; 5 C.F.R. § 752.402(b).
In the initial decision, the administrative judge acknowledged that the
appellant was a preference eligible. ID at 3. However, she applied the standard
set forth in 5 U.S.C. § 7511(a)(1)(C) for a nonpreference eligible. ID at 3. We
may rule on this jurisdictional issue because the appellant received explicit
jurisdictional notice regarding a preference eligible in the excepted service and
the record on the dispositive facts is fully developed. See Ramirez-Evans v.
Department of Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). As explained
below, the record reflects that the appellant failed to raise a nonfrivolous
allegation of Board jurisdiction under 5 U.S.C. § 7511(a)(1)(B). We modify the
initial decision accordingly. 4
Notably for a preference eligible in the excepted service, the absence or
completion of a probationary or trial period is not determinative of “employee”
status. Maibaum, 116 M.S.P.R. 234, ¶ 9. Rather, the dispositive issue is whether
4
Because of our finding that the appellant failed to nonfrivolously allege that he met
the 1 year of current continuous service requirement, as set forth below, the appellant’s
preference eligibility status does not affect the outcome of this appeal. Thus, the
administrative judge’s failure to apply section 7511(a)(1)(B) to this appeal did not
prejudice the appellant’s substantive rights, and thus does not provide a basis for
reversing the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984).
5
the appellant satisfied the 1-year current continuous service requirement at the
time of his separation. Because the appellant was terminated during his first year
of service, we must determine whether the appellant’s prior service may be tacked
onto the service at issue.
The appellant’s prior employment as a Police Officer cannot be tacked onto
his civilian service to satisfy the 1-year current continuous service requirement
because it was preceded by a break in service of more than a workday. Maibaum,
116 M.S.P.R. 234, ¶ 14. Moreover, while the appellant had prior military service,
IAF, Tab 1 at 5, Tab 4 at 3, Tab 12 at 52, military service cannot be tacked onto
civilian service to satisfy the 1-year current continuous service requirement,
Bell v. Department of Homeland Security, 95 M.S.P.R. 580, ¶¶ 15-18 (2004). The
appellant has therefore failed to nonfrivolously allege that he completed 1 year of
current continuous service in the same or similar positions under 5 U.S.C.
§ 7511(a)(1)(B). Thus, we agree with the administrative judge that the appellant
has failed to nonfrivolously allege that he is an “employee” who may appeal to
the Board under 5 U.S.C. chapter 75. ID at 3.
The appellant has not made a nonfrivolous allegation of Board jurisdiction under
5 C.F.R. § 315.806.
Individuals in VRA appointments have been granted the same appeal rights
during the first year of their trial periods as competitive service employees.
Maibaum, 116 M.S.P.R. 234, ¶ 18; 5 C.F.R. § 307.105. Under 5 C.F.R.
§ 315.806(b), a probationary employee may appeal a termination taken for
reasons arising after his appointment if he alleges that the termination was based
on partisan political reasons or marital status. 5 Maibaum, 116 M.S.P.R. 234,
5
The appellant does not appear to allege that his termination was based on partisan
political reasons. Moreover, the appellant does not challenge on review the
administrative judge’s finding that his allegations, taken as true, do not show that he
was treated differently because of his marital status or constitute facts that go to the
essence of his marital status. ID at 4-5; see Marynowski v. Department of the Navy,
118 M.S.P.R. 321, ¶ 9 (2012) (stating that, to make a nonfrivolous allegation of marital
status discrimination, an appellant must allege facts which, taken as true, would show
that she was treated differently because of her marital status or facts that go to the
6
¶ 18. Under 5 C.F.R. § 315.806(c), a probationer whose termination was based
on preappointment reasons may appeal on the ground that his termination was not
effected in accordance with the procedural requirements of 5 C.F.R. § 315.805.
West v. Department of Health and Human Services, 122 M.S.P.R. 434, ¶ 7 (2015).
We agree with the administrative judge that the appellant did not make a
nonfrivolous allegation in this regard.
On review, the appellant reiterates his contention that the agency’s
investigation of his extramarital affair with an agency employee, which occurred
during his first appointment, constitutes a preappointment reason for his
termination. PFR File, Tab 1 at 4-5. As to this argument, he expresses his belief
that he was denied an opportunity to respond to the charges against him as
required by regulation. Id. at 5. The administrative judge considered this
argument below and determined that the agency terminated the appellant for
postappointment reasons—specifically, for his arrest for alleged domestic-related
battery and based on a subsequent investigation into his misconduct during his
trial period. ID at 4; IAF, Tab 12. The administrative judge concluded therefore
that the appellant was not entitled to the procedural protections of 5 C.F.R.
§ 315.805. ID at 4. We discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Service s,
33 M.S.P.R. 357, 359 (1987) (same).
Because the appellant has failed to make a nonfrivolous allegation of Board
jurisdiction under either chapter 75 or 5 C.F.R. part 315, the administrative judge
essence of her status as married, single, or divorced). We agree with the administrative
judge that the appellant did not raise a nonfrivolous allegation of marital status
discrimination. ID at 4-5.
7
correctly found that he was not entitled to a jurisdictional hearing. 6 Liu,
106 M.S.P.R. 178, ¶ 8. Accordingly, we affirm the initial decision as modified
herein.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6
On review, the appellant also appears to challenge the merits of the agency’s
termination decision. PFR File, Tab 1 at 4. These arguments do not provide a basis for
disturbing the initial decision. See Yakupzack v. Department of Agriculture,
10 M.S.P.R. 180, 182 (1982) (stating that the Board’s review of probationary
terminations does not include a review of the merits of the termination action);
Kellum v. Veterans Administration, 2 M.S.P.R. 65, 67 (1980) (finding that, absent
Board jurisdiction over a probationary termination, issues concerning the sufficiency
and propriety of the agency’s misconduct allegations concern are immaterial to an
appeal).
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
9
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.