Juhee Boyd v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUHEE BOYD, DOCKET NUMBER
Appellant, DC-3443-15-0979-I-1
v.
DEPARTMENT OF THE ARMY, DATE: January 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Patrick Boyd, Rome, New York, for the appellant.
Michael J. McHugh, Esquire, Fort Bragg, North Carolina, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her reduction-in-pay 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See
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).
BACKGROUND
¶1 Effective July 14, 2014, the agency appointed the appellant to the position
of Financial Management Specialist in the competitive service, subject to the
completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 1
at 9-10. On April 7, 2015, during her probationary period, the agency
retroactively corrected her rate of basic pay from a GS-11, step 7, to a GS-11,
step 1, resulting in a reduction in pay. Id. at 11-12; IAF, Tab 7 at 10-11. The
appellant subsequently filed a Board appeal and requested a hearing. IAF, Tab 1
at 1-7. In addition to disputing the merits of the agency’s action, she also
asserted a claim of national origin discrimination. Id. at 6. The administrative
judge issued an order to show cause informing the appellant that the Board
may not have jurisdiction over her appeal and apprising her of the burden of
proving that she was an “employee” under 5 U.S.C. § 7511(a)(1)(A) with
chapter 75 appeal rights. IAF, Tab 3 at 1-2. The administrative judge ordered the
appellant to file evidence and argument on the jurisdictional issue. Id. at 2. With
her response, the appellant submitted evidence of her prior appointments in the
excepted service under the Korean General Schedule (KGS) pay plan. IAF, Tab 4
3
at 8-12. Her submissions indicate that her most recent prior appointment to a
KGS-11, step 7, Staff Accountant position in the excepted service ended on
January 25, 2014. Id. at 8, 11.
¶2 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID) at 1, 5-6. The administrative judge concluded that the appellant
failed to make a nonfrivolous allegation of jurisdiction and therefore was not
entitled to a hearing. ID at 5. Specifically, the administrative judge found that
the appellant was not an “employee” under 5 U.S.C. § 7511(a)(1)(A)(i) because it
was undisputed that she was serving a probationary period under an initial
appointment in the competitive service when the agency took its action. ID at 4.
The administrative judge also found that the appellant was not an “employee”
under 5 U.S.C. § 7511(a)(1)(A)(ii) because she had a break in service and
therefore had not completed 1 year of current continuous service at the time of
the agency’s action. Id. Finally, the administrative judge found that the Board
lacks the jurisdiction to hear the appellant’s claim of national origin
discrimination absent an otherwise appealable action. 2 ID at 5.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition, PFR File, Tab 3, to
which the appellant has replied, PFR File, Tab 4. 3
2
The appellant does not challenge this well-reasoned finding on review, and we see no
reason to disturb it here. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)
(finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff'd, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
3
The appellant’s pleading is titled, “Cross Petition for Review.” A cross petition for
review is a pleading that is filed by a party when another party already has filed a
timely petition for review. 5 C.F.R. § 1201.114(a)(2). Because the appellant is the
party that filed a petition for review, she also cannot file a cross petition for review, and
we instead have considered her pleading to be a reply to the agency’s response. See
5 C.F.R. § 1201.114(a)(4).
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. 4 5 C.F.R. § 1201.56(b)(2)(i)(A). If an appellant
makes a nonfrivolous allegation 5 of Board jurisdiction over an appeal, she is
entitled to a hearing on the jurisdictional question. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
¶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). The Board generally has
jurisdiction to review a reduction in grade or pay under chapter 75 of title 5.
5 U.S.C. §§ 7512(4), 7513(d); Simmons v. Department of Housing & Urban
Development, 120 M.S.P.R. 489, ¶ 5 (2014). To establish Board jurisdiction
under chapter 75, an individual must, among other things, show that she satisfies
one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.
§ 7513(d); Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). For
an individual in the competitive service, like the appellant, this means that she
either must not be serving a probationary or trial period under an initial
appointment, or have completed 1 year of current continuous service under other
than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A);
Walker, 119 M.S.P.R. 391, ¶ 5.
¶6 An appellant who has not served a full year under her appointment can
show that she has completed the probationary period, and so is no longer a
probationer, by tacking on prior service if the prior service was: (1) performed in
the same agency; (2) performed in the same line of work; and (3) completed with
4
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
5
no more than one break in service of less than 30 days. 5 C.F.R. § 315.802(b);
see Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010) (stating the
same rule with the additional requirement that the service immediately precede
the probationary appointment, a requirement that no longer appears in the
regulation). Alternatively, an employee can show that, while she may be a
probationer, she is an “employee” with chapter 75 appeal rights because,
immediately preceding the adverse action, she had completed at least 1 year of
current continuous service in the competitive service without a break in Federal
civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9.
¶7 Here, it is undisputed that the appellant resigned from an excepted-service
position on January 25, 2014. IAF, Tab 4 at 11. Although prior service in the
excepted service may be counted toward the completion of a probationary period
in the competitive service, Hurston, 113 M.S.P.R. 34, ¶ 10, the appellant still
could not satisfy the requirements for tacking service, see id., ¶ 9; 5 C.F.R.
§ 315.802(b). The record evidence shows that the appellant’s prior Federal
service ended more than 5 months before her probationary appointment to her
current position on July 14, 2014. IAF, Tab 1 at 9-10, Tab 4 at 11. Thus, there
was a break in service of more than 30 days. See 5 C.F.R. § 315.802(b).
Additionally, it is undisputed that the agency took its action before she completed
1 year of service in the competitive service. IAF, Tab 1 at 9-10, Tab 7 at 10-11.
Therefore, the appellant had not yet completed 1 year of current continuous
service without a break in Federal civilian employment of a workday prior to her
reduction in pay. IAF, Tab 1 at 9-10, Tab 7 at 10-11; see Hurston, 113 M.S.P.R.
34, ¶ 9. As the administrative judge properly found, the appellant does not satisfy
the requirements of an “employee” under either prong of 5 U.S.C.
§ 7511(a)(1)(A). ID at 4.
6
¶8 The appellant contends, for the first time on review, that she qualifies as an
“employee” under 5 U.S.C. § 7511(a)(1)(C)(i). PFR File, Tab 1 at 4-5. 6 She
argues that, because the agency should have converted her from a KGS to a GS
position after her naturalization on April 29, 2013, she should be considered to
have performed 272 days in the competitive service prior to her break in service.
Id. at 4. She further asserts that, because her break in service for 171 days
between her most recent prior appointment and current one was to accompany her
spouse in the Armed Forces who was returning to a duty station from an official
assignment overseas, she has “substantially continuous service” under 5 C.F.R.
§ 315.201(b)(3)(x). Id. at 5. She concludes that she had over 1 year of
continuous service when the agency reduced her pay rate, and thus, qualifies as
an “employee” under 5 U.S.C. § 7511(a)(1)(C)(i). Id.¶9 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R.
§ 1201.115(d). To support her arguments, the appellant submits a notarized
statement with attachments from a retired agency official that she claims she was
unable to obtain before the close of the record below. PFR File, Tab 1 at 5-14.
Even assuming that she previously was unable to obtain the notarized statement
below, we are not persuaded by her arguments on review.
¶10 Although the appellant is represented by her husband, he is not a legal
professional and does not appear to have prior experience in Board proceedings.
IAF, Tab 4 at 44-56. Given the appellant’s lack of legal counsel, we interpret her
petition for review liberally by assuming that she is arguing not only that she is
6
The appellant does not challenge the administrative judge’s finding that, because she
was not terminated, she does not have the appeal rights available to terminated,
competitive-service probationary employees under 5 C.F.R. § 315.806. ID at 3-4 n.1.
We affirm this finding.
7
an “employee” under 5 U.S.C. § 7511(a)(1)(C)(i), but also that she is an
employee under subsection (A)(ii) because she has more than 1 year of current
continuous service. See, e.g., Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 97-98 (1989) (observing that parties without legal
representation are not required to plead issues with precision), aff’d, 899 F.2d
1228 (Fed. Cir. 1990) (Table). First, we find that 5 U.S.C. § 7511(a)(1)(C)(i)
does not apply to the appellant because it pertains to individuals in the excepted
service. At the time of the agency’s action, the appellant was an individual in the
competitive service. IAF, Tab 7 at 10-11.
¶11 Next, we find that 5 C.F.R. § 315.201(b)(3) is not relevant to whether the
appellant is an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii). Rather, it excuses
certain absences from the calculation of the 3-year requirement of substantially
continuous creditable service for career tenure. See 5 C.F.R. § 315.201(b)(3).
Career tenure, in turn, is different from status as an employee with appeal rights.
It is “important for the purposes of reinstatement eligibility and retention
standing in a reduction in force.” Career and Career-Conditional Employment,
79 Fed. Reg. 610 (proposed Jan. 6, 2014) (to be codified at 5 C.F.R. § 315.201).
Therefore, we find 5 C.F.R. § 315.201(b)(3) inapplicable to the jurisdictional
issue in this appeal.
¶12 Finally, the appellant’s claim that she should have been converted from a
KGS to a GS position in the competitive service after becoming a U.S. citizen
is not relevant to our jurisdictional determination. PFR File, Tab 1 at 4. Even
assuming that the appellant was converted to a GS position in the competitive
service after her naturalization, she still would not qualify as an “employee”
under 5 U.S.C. § 7511(a)(1)(A)(ii) because she had a break in service of more
than 30 days. IAF, Tab 1 at 9-10, Tab 4 at 11. For these reasons, we find that the
8
appellant has failed to nonfrivolously allege that she is an “employee” with
chapter 75 appeal rights. 7
¶13 Accordingly, we decline to disturb the initial decision and 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:
U.S. 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 U.S. 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 U.S. 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
7
Because the evidence submitted on review regarding the agency’s superior
qualifications and special needs pay-setting authority pertains to the merits of the
appeal and is not dispositive to the relevant jurisdictional issue, we decline to discuss it
further. PFR File, Tab 1 at 11; see 5 C.F.R. § 531.212.
9
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
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.