Opinion

Jared Miller v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JARED D. MILLER, DOCKET NUMBER

Appellant, CH-315H-19-0524-I-1

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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

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.

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).

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).

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

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).

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,

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

¶ 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.

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

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).

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.

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

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

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

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.