The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERESA M. CROSKEY, DOCKET NUMBER
Appellant, AT-3443-23-0228-I-1
v.
DEPARTMENT OF VETERANS DATE: August 20, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Teresa M. Croskey , Montgomery, Alabama, pro se.
Karla Brown Dolby , Esquire, and Sophia Haynes , Decatur, Georgia, for the
agency.
Bob Boulware and Karen Rodgers , Montgomery, Alabama, 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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant’s 10-day suspension
and absence without leave (AWOL) status are not appealable adverse actions.
¶2 On review, the appellant requests a hearing and questions the administrative
judge’s finding of lack of jurisdiction over her appeal. Petition for Review (PFR)
File, Tab 1 at 1. The administrative judge correctly found that suspensions of
14 days or less are not appealable adverse actions pursuant to chapter 75 of Title
5 of the U.S. Code. Initial Appeal File (IAF), Tab 9, Initial Decision at 1, 3-4;
see 5 U.S.C. § 7512, 7513(d); Marks v. U.S. Postal Service, 78 M.S.P.R. 451, 454
(1998). Further, an employee’s placement in an AWOL status is not, by itself, an
appealable matter. See Maki v. U.S. Postal Service, 41 M.S.P.R. 449, 453-54
(1989). To the extent that the appellant suggests that she is entitled to a hearing
because her agency’s decision on her suspension informed her of Board appeal
rights, it is well settled that the provision of Board appeal rights in an agency
decision does not serve to confer jurisdiction on the Board when it does not
otherwise exist. PFR File, Tab 1 at 1-2; IAF, Tab 1 at 11-12; see DeGrella v.
Department of the Air Force, 2022 MSPB 44, ¶ 16 n.7; Covington v. Department
of the Army, 85 M.S.P.R. 612, ¶ 9 (2000).
We remand the appeal for a determination of whether the Board has jurisdiction
over possible other claims.
¶3 We find that the instant appeal needs to be remanded for further
proceedings because the appellant’s initial appeal alluded to other potential bases
3
for the Board’s jurisdiction. IAF, Tab 1. An appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue.
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
1985). Neither the administrative judge’s orders, the initial decision, nor the
agency’s submissions provided the appellant with notice of the jurisdictional
requirements of each claim as discussed below. See Harris v. U.S. Postal
Service, 112 M.S.P.R. 186, ¶ 9 (2009).
¶4 In her initial filing, the appellant checked the box for alleging failure to
restore, reemploy, or reinstate or improper restoration, reemployment, or
reinstatement. IAF, Tab 1 at 3. The record contains evidence indicating that she
sustained a compensable injury and that she was deemed partially recovered.
Id. at 22, 33-34, 57, 61, 64-74, 102-109. However, the appellant has raised
concerns about her restoration to duty in a light duty assignment. Id. at 19-20,
22, 27, 31-43, 61, 64, 73-74, 78-79, 140-41. Thus, she should receive notice
regarding her jurisdictional burden in a restoration appeal filed pursuant to
5 C.F.R. § 353.304.
¶5 Additionally, on her initial appeal form, the appellant indicated that she
filed a whistleblowing complaint with the Office of Special Counsel (OSC) in
March 2020. IAF, Tab 1 at 4. The administrative judge initially assigned to the
appeal informed the appellant about the Board’s jurisdiction over whistleblower
reprisal claims under 5 U.S.C. § 2302(b)(8) and (b)(9), and indicated the
possibility of an individual right of action (IRA) appeal if she exhausted her
administrative remedies before OSC. IAF, Tab 2 at 2-3 & nn.2-4, Tab 6 at 2.
However, the administrative judge did not give the appellant explicit notice on
how to establish jurisdiction over an IRA appeal or explain that she must show
that she exhausted her OSC remedy as to the matters raised in her Board appeal.
See Boughton v. Department of Agriculture , 94 M.S.P.R. 347, ¶ 4 (2003); see also
Burgess, 758 F.2d at 643-44. On remand, the administrative judge should provide
such explicit notice.
4
¶6 The initial appeal form and the record indicate that the appellant is
preference-eligible. IAF, Tab 1 at 2, 81-82. She referenced her status as a
disabled veteran. Id. at 78-79. She also checked “No” when asked if the
Department of Labor had decided on a complaint, but she did not complete any of
the other questions in that section. Id. at 4. The acknowledgment order generally
advised the appellant that the Board may have jurisdiction over a claim of
discrimination based on uniformed service or veteran status, or a violation of
veterans’ preference rights. IAF, Tab 2 at 2-3. But the appellant was not
informed of the respective burdens of proof and different methods of proving
each claim. On remand, the administrative judge should provide explicit notice
on establishing jurisdiction over Uniformed Services Employment and
Reemployment Rights Act and Veterans Employment Opportunity Act of 1998
claims.
¶7 Finally, because the appellant checked the box for alleging “negative
suitability determination” in her initial appeal filing, she should also receive
notice of the applicable jurisdictional issues concerning a suitability action
pursuant to 5 C.F.R. part 731. IAF, Tab 1 at 3.
¶8 We therefore remand the appeal for the appellant to receive such
information and to allow the parties to submit evidence and argument on
jurisdiction. See Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283,
¶¶ 7-8, 18, 21-22 (2006). If the administrative judge determines that the Board
has jurisdiction over any of these claims, she should proceed to adjudicate the
appellant’s claims on the merits.
5
ORDER
¶9 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.