Opinion

Donnek E Broadus v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

stating there is a limited exception to that rule for health care professionals who are appointed to positions listed in section 7401(3)

How later courts described this case

stating there is a limited exception to that rule for health care professionals who are appointed to positions listed in section 7401(3)

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNEK E. BROADUS, DOCKET NUMBER

Appellant, PH-0752-20-0321-I-1

DEPARTMENT OF VETERANS DATE: July 2, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donnek E. Broadus , Avondale, Pennsylvania, pro se.

Nelda Davis , Esquire, Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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 in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 vacate the administrative judge’s finding that the

appellant’s appointment excluded her from coverage under chapter 75 and clarify

that the appellant has not made a nonfrivolous allegation that she met the

definition of an “employee” with chapter 75 appeal rights, we AFFIRM the initial

decision.

BACKGROUND

Effective May 4, 2020, the agency appointed the appellant to the position

of Nursing Assistant in a time-limited appointment in the excepted service under

38 U.S.C. § 7405(a)(1). Initial Appeal File (IAF), Tab 6 at 7. By letter dated

May 27, 2020, the agency notified the appellant that it was terminating her

appointment “due to unacceptable in-processing, attendance, and failure to adhere

to dress code policy,” effective May 29, 2020. Id. at 8.

The appellant filed an appeal and requested a hearing. IAF, Tab 1 at 2.

She checked the boxes indicating that her Federal employment status was

“temporary” and that she was “serving a probationary, trial, or initial service

period at the time of the action” she was appealing. Id. at 1. The appellant

asserted that the agency was “wrong” because she had never received information

regarding the dress code or attendance policies and that she was “not treated fair.”

Id. at 4. She filed supplemental pleadings asserting that she was wrongfully

terminated for false reasons and raising personal complaints regarding her brief

employment with the agency. IAF, Tab 5 at 3, Tab 7 at 3.

In the acknowledgment order, the administrative judge informed the

appellant that the Board may not have jurisdiction over her appeal and apprised

her of the regulatory right to appeal for probationers in the competitive service

and the requirements for meeting the definition of an “employee” for purposes of

5 U.S.C. chapter 75 appeal rights. IAF, Tab 2 at 2-5. The agency filed a motion

to dismiss the appeal for lack of jurisdiction, arguing that the appellant did not

meet the definition of an employee under section 7511 and that she had been

serving a temporary appointment without the possibility of conversion to the

competitive service at the time of her termination. IAF, Tab 6 at 4-6. The agency

also argued that the appellant had been employed for less than 1 month prior to

her termination and that she did not provide any evidence that she had 2 years of

current continuous service in the same or similar positions. Id. at 6.

Subsequently, the administrative judge issued an order to show cause,

noting that the Standard Form 50 (SF-50) submitted by the agency into the record

indicated that the appellant received an excepted service appointment, and

therefore the parties should ignore his prior jurisdiction order concerning the

competitive service. IAF, Tab 8 at 2. He advised the appellant that medical

professionals appointed under 38 U.S.C. § 7405(a)(1) lack chapter 75 appeal

rights since their appointments are without regard to civil service laws, rules, or

regulations. Id. at 2-3. The administrative judge also notified the appellant that

the record contained no evidence demonstrating that she met the definition of an

“employee” in the excepted service under 5 U.S.C. § 7511(a)(1)(C) and instructed

her to submit any relevant argument or evidence to the contrary. Id. at 2-3 n. 2.

In the two pleadings she submitted in response to the order to show cause, the

appellant largely repeated her general arguments concerning the merits of her

termination and did not address the jurisdictional issue. IAF, Tab 9 at 3, Tab 10

at 3.

Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal because the appellant failed to make a

nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF,

Tab 11, Initial Decision (ID) at 1, 4. He found that, although the SF-50 submitted

by the agency stated that it had appointed the appellant under 38 U.S.C. 7405(a)

(1)(A), the correct appointing authority for the appellant’s Nursing Assistant

position was section 7405(a)(1)(B). ID at 3. The administrative judge found that,

as an appointee to a temporary position under section 7405(a)(1), the appellant

lacked the right to appeal adverse actions to the Board under chapter 75. ID at 3-

4. Finally, he noted that none of the appellant’s submissions on appeal addressed

the issue of jurisdiction. Id.

The appellant has filed a petition for review, in which she repeats her

assertion that she was wrongfully terminated and does not challenge the

administrative judge’s jurisdictional findings. Petition for Review (PFR) File,

Tab 1 at 3, Tab 2 at 3. The agency has filed a response arguing that the appellant

has failed to provide a basis for overturning the initial decision. PFR File, Tab 4

at 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

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 has the burden

of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.

§ 1201.56(b)(2)(i)(A). Generally, individuals appointed under 38 U.S.C.

§ 7405(a)(1) are excluded from “civil service or classification laws, rules, or

regulations.” However, the Board has jurisdiction over disciplinary actions

issued to individuals appointed under 38 U.S.C. § 7405(a)(1)(B) if they meet the

definition of an employee under 5 U.S.C. § 7511. 38 U.S.C. § 7403(f)(3); see

Carrow v. Merit Systems Protection Board, 564 F.3d 1359, 1364 (Fed. Cir. 2009)

(stating there is a limited exception to that rule for health care professionals who

are appointed to positions listed in section 7401(3)).

The SF-50 submitted into the record by the agency stated that the appellant

had been appointed to a time-limited Nursing Assistant position under the

authority of 38 U.S.C. § 7405(a)(1)(A). IAF, Tab 6 at 7. However, the

administrative judge correctly determined that the position of “nurse assistant” is

listed in 38 U.S.C. § 7401(3), and therefore the proper appointing authority was

section 7405(a)(1)(B). ID at 3; see Scott v. Department of the Air Force,

113 M.S.P.R. 434, ¶ 8 (2010) (stating that an SF-50 is not a legally operative

document controlling on its face an employee’s status and rights; instead, the

Board looks at the totality of the circumstances in determining the nature of an

appointment). Nonetheless, because the appellant was employed by the agency as

a Nursing Assistant, a position listed in section 7401(3) of title 38, the

administrative judge incorrectly dismissed the appeal on the basis that she was

appointed under section 7405(a)(1). ID at 3-4; see Carrow, 564 F.3d at 1364.

The administrative judge should have assessed whether the appellant had made

nonfrivolous allegations 2 that she met the definition of an employee under chapter

75. See 38 U.S.C. § 7403(f)(3); 5 U.S.C. § 7511(b)(10).

A nonpreference-eligible individual in the excepted service is an

“employee” within the meaning of 5 U.S.C. § 7511 only if she: (1) is not serving

a probationary or trial period under an initial appointment pending conversion to

the competitive service; or (2) 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); see Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210, ¶ 10

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

(2009) (applying this provision to an excepted service appointment made under

38 U.S.C. § 7401(3)). The appellant has not alleged on appeal or on review that

she had 2 years of current continuous service or was serving under an initial

appointment pending conversion to the competitive service. IAF, Tab 1 at 1-5,

Tab 5 at 3, Tab 7 at 3, Tab 9 at 3, Tab 10 at 3; PFR File, Tab 1 at 3, Tab 2 at 3.

The record evidence demonstrates that the appellant was appointed on May 4,

2020, and terminated less than 1 month later, effective May 29, 2020. IAF, Tab 6

at 7-8. In her initial appeal form, the appellant stated that she had zero months of

Government service and that she held a temporary appointment at the time of her

termination. IAF, Tab 1 at 1. Because the appellant failed to nonfrivolously

allege that she met the definition of an “employee” with Board appeal rights

under 5 U.S.C. chapter 75, she was not entitled to a jurisdictional hearing. See

Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (stating that an

appellant is entitled to a jurisdictional hearing if she presents nonfrivolous

allegations of Board jurisdiction).

NOTICE OF APPEAL RIGHTS 3

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

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.

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

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. 4 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).

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.

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