Randy Carter v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RANDY ORAN CARTER, DOCKET NUMBER

Appellant, AT-315I-23-0635-I-1

v.

DEPARTMENT OF THE NAVY, DATE: August 22, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Randy Oran Carter , Ridgeland, South Carolina, pro se.

John Errett Buis , Beaufort, South Carolina, 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.

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his probationary termination 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 regional office for

further adjudication in accordance with this Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 On February 27, 2023, the agency appointed the appellant to the

competitive-service position of GS-11 Supervisory Career Resource Manager,

subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 6 at 10.

Effective July 19, 2023, the agency terminated his employment because of

“conduct unbecoming a Supervisory Federal Employee.” Id. at 13-16. On

August 8, 2023, the appellant filed a Board appeal challenging his termination.

IAF, Tab 1 at 7, 12, 453.

¶3 The administrative judge issued an acknowledgment order, which notified

the appellant that the Board may not have jurisdiction over his appeal unless he

made a nonfrivolous allegation that the agency terminated him based on partisan

political reasons or marital status. IAF, Tab 2 at 4-5. She provided the parties

with an opportunity to present evidence and argument regarding jurisdiction. Id.

at 5. In the appellant’s response, he alleged that he was terminated due to his

“marital status and conservative political views[, which] run counterintuitive [sic]

to [his director’s] single life and liberal political views.” IAF, Tab 5 at 2. The

agency responded to the acknowledgment order by arguing that the appeal should

be dismissed for lack of jurisdiction. IAF, Tab 6 at 4-8.

¶4 On November 27, 2023, the administrative judge issued an order observing

that the appellant might be raising a claim of reprisal for protected

whistleblowing disclosures or activity. IAF, Tab 8 at 1. She set forth the

appellant’s burden of establishing jurisdiction over an individual right of action

(IRA) appeal and provided him with an opportunity to present evidence and

argument establishing IRA jurisdiction. Id. at 2. The administrative judge served

the order on the parties electronically, as both parties had registered as e-filers at

the time the order was issued. Id. at 4. The appellant did not file a response to

the November 27, 2023 order.

¶5 On January 9, 2024, the administrative judge issued an initial decision,

which dismissed the appeal for lack of Board jurisdiction. IAF, Tab 9, Initial

3

Decision (ID) at 2, 6. She reasoned that the parties did not dispute that the

appellant lacked chapter 75 adverse action appeal rights. ID at 3-4. She further

found that the appellant failed to make a nonfrivolous allegation that his

probationary termination was based on partisan political reasons or marital status.

ID at 4-6. Accordingly, the administrative judge dismissed the appeal for lack of

jurisdiction without holding the appellant’s requested hearing. ID at 1; IAF,

Tab 1 at 2.

¶6 The administrative judge observed in the initial decision that the appellant

had not responded to her order regarding whistleblower reprisal; however, she did

not make any findings regarding this claim. ID at 6 n.2. She also indicated that

the appellant alleged that he was terminated in reprisal for asserting another

employee’s rights under the Uniformed Services Employment and Reemployment

Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA)

and advised him that he could file a separate USERRA appeal. Id.

¶7 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1 at 14. He reasserts claims of reprisal for whistleblowing and

for defending another employee’s USERRA rights. Id. at 10-12. He also argues

that he experienced technical issues in accessing the judge’s order in the Board’s

e-Appeal system, for which he sought technical assistance, and that his inability

to access e-Appeal prevented him from responding to the administrative judge’s

November 27, 2023 order regarding whistleblower reprisal. Id. at 5-6. The

agency has filed a response. PFR File, Tab 3.

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DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The issue before us is whether we have jurisdiction over this appeal. The

Board does not have jurisdiction over all matters involving a Federal employee

that are allegedly unfair or incorrect. Weyman v. Department of Justice,

58 M.S.P.R. 509, 512 (1993). Rather, the Board only has the jurisdiction that

pertinent statutes and regulations provide it. Id.

¶9 An appellant has the burden of proving Board jurisdiction. 5 C.F.R.

§§ 1201.56(b)(2)(i)(A), .57(b)-(c)(1). He must receive explicit information on

what is required to do so. Burgess v. Merit Systems Protection Board, 758 F.2d

641, 643-44 (Fed. Cir. 1985). If an administrative judge has not advised an

appellant of his burden of establishing jurisdiction, the appeal generally must be

remanded to allow the parties to submit evidence and argument regarding the

jurisdictional issue. Hudson v. Department of Veterans Affairs, 104 M.S.P.R.

283, ¶ 8 (2006). Nevertheless, an administrative judge’s failure to provide an

appellant with proper jurisdictional notice can be cured if the agency’s pleadings

contain the notice that was lacking in the administrative judge’s orders or if the

initial decision itself puts the appellant on notice of what he must do to establish

jurisdiction, thus affording him the opportunity to meet his jurisdictional burden

in the petition for review. Mapstone v. Department of the Interior, 106 M.S.P.R.

691, ¶ 9 (2007).

¶10 Here, the administrative judge did not advise the appellant of how to

establish jurisdiction over his termination under chapter 75 in either of her two

jurisdictional orders. IAF, Tab 2 at 4-5, Tab 8 at 2. However, her error was

cured by the initial decision, in which she provided the definition of a competitive

service appointee with the right to appeal his removal to the Board under chapter

75. ID at 3. An individual in the competitive service who, like the appellant, is

serving an initial probationary period and has not completed 1 year of current

continuous service has no right to appeal to the Board under chapter 75. 5 U.S.C.

5

§§ 7511(a)(1)(A), 7512(1), 7513(d); Starkey v. Department of Housing and Urban

Development, 2024 MSPB 6, ¶ 16. On review, the parties do not dispute the

administrative judge’s findings that the appellant was a competitive service

appointee subject to the completion of a 1-year probationary period and that he

was terminated before his 1-year anniversary. ID at 3-4; IAF, Tab 1 at 2-3, Tab 6

at 10, 16. Therefore, we discern no basis to disturb the administrative judge’s

finding that the Board lacks chapter 75 jurisdiction over the appellant’s

termination.

¶11 Under certain limited circumstances, a probationary competitive service

appointee who is terminated during the first year of his initial probationary period

may have a regulatory right of appeal under 5 C.F.R. § 315.806. 2 Starkey,

2024 MSPB 6, ¶ 16. As relevant here, he “may appeal . . . a termination not

required by statute which he . . . alleges was based on partisan political reasons or

marital status.” Id. (quoting 5 C.F.R. § 315.806(b)). To establish Board

jurisdiction under this provision, the appellant must prove by preponderant

evidence that his termination was, in fact, based on partisan political reasons or

marital status. Id. An appellant has the right to a hearing on the jurisdictional

issue only if he first makes a nonfrivolous allegation of jurisdiction, i.e.,

allegations of fact that, if proven, would establish that his termination was based

on partisan political reasons or marital status. Id., ¶ 16 n.4. On review, the

parties do not disagree with the administrative judge that the appellant’s factual

allegations that his manager’s expressed views in favor of diversity and Pride

Month, her divorced status and alleged feelings about her divorce, and the fact

2

In her acknowledgment order, the administrative judge mistakenly cited 5 C.F.R.

§ 315.908 as the basis of the Board’s jurisdiction over this type of claim. IAF, Tab 2

at 4. Section 315.908 concerns the Board’s jurisdiction over the return of a previously

promoted competitive service employee to his prior position for failure to satisfactorily

complete a supervisory probationary period. Burton v. Department of the Air Force,

118 M.S.P.R. 210, ¶ 7 (2012). That provision does not apply here. To the extent that

the administrative judge’s citation to the incorrect regulation may have caused the

parties confusion below, any such confusion was cured by the initial decision, which

correctly cited to 5 C.F.R. § 315.806. ID at 4.

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that the appellant was married and had more “conservative views” were

insufficient to raise a nonfrivolous allegation of discrimination based on marital

status or partisan politics in violation of 5 C.F.R. § 315.806(b). ID at 4-6. We

discern no error in these findings. 3

¶12 We turn next to the appellant’s claim of whistleblower reprisal. A

probationary termination is a personnel action over which the Board may have

IRA jurisdiction. See 5 U.S.C. § 2302(a)(2)(A)(iii) (defining “personnel action”

for purposes of an IRA appeal as including a “disciplinary or corrective action”);

Scalera v. Department of the Navy, 102 M.S.P.R. 43, ¶ 15 (2006) (finding that a

probationary termination constitutes a personnel action under the Whistleblower

Protection Act). The appellant realleges on review that his termination was

retaliation for, among other matters, refusing the agency’s unlawful order that he

and the other two members of a selection panel interview unqualified candidates

after they had already chosen a candidate for the vacancy in question. PFR File,

Tab 1 at 11; IAF, Tab 1 at 16-17, 30.

¶13 Although he had already created an account in the Board’s e-Appeal system

when the administrative judge issued her November 27, 2023 order regarding

whistleblower reprisal, and the order was served electronically on the parties, the

appellant was unable to access e-Appeal at that time. 4 IAF, Tab 8; see also

5 C.F.R. § 1201.14(e)(2) (providing that a party who registers as an e-filer

3

On review, the appellant reraises claims under Title VII of race discrimination and

retaliation for protected activity and realleges that the agency made harmful errors or

violated his right to due process in connection with his termination. PFR File, Tab 1

at 2-4, 6-12; IAF, Tab 1 at 15-16, 30, 33, 35-36, Tab 7 at 4-7. We discern no error in

the administrative judge’s determination that the Board lacks jurisdiction over such

claims because the appellant did not establish jurisdiction over an otherwise appealable

action. ID at 6; see Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012)

(finding that, in the absence of an otherwise appealable action, the Board lacks

jurisdiction over claims of harmful error and prohibited personnel practices, including

discrimination claims); Moore v. Department of State, 15 M.S.P.R. 488, 489-90 (1983)

(stating that neither an allegation of a prohibited personnel practice nor a violation of

constitutional rights standing alone will confer jurisdiction in the absence of an

otherwise appealable action), aff’d, 765 F.2d 159 (Fed. Cir. 1985) (Table). Therefore,

we have not addressed these claims further.

7

consents to accept electronic service of pleadings filed by other e-filers and

documents issued by the Board). After the administrative judge issued her initial

decision, the appellant gained access to his e-Appeal account, and therefore could

have responded to the order on review. However, he has not done so.

Nonetheless, given his difficulty with the e-Appeal system, his pro se status, and

the fact that the administrative judge did not make a determination as to whether

the appellant met his jurisdictional burden, the appellant may be confused

regarding his obligation to establish jurisdiction over his whistleblower reprisal

claim. ID at 6 n.2.

¶14 Further, the administrative judge’s order regarding the Board’s IRA

jurisdiction was incomplete. A Board order should be “reasonably calculated to

apprise [an appellant] of what was required” to establish jurisdiction. See

Burgess, 758 F.2d at 643-44 (concluding that a Board’s order was not “reasonably

calculated to apprise [the petitioner] of what was required to obtain a hearing” on

the issue of jurisdiction over his alleged involuntary resignation); King v.

Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 10 (2007) (observing that

jurisdiction in an IRA appeal is determined based on the written record). She

correctly stated that the Board has jurisdiction if the appellant has exhausted his

administrative remedies before the Office of Special Counsel (OSC) and makes

nonfrivolous allegations that (1) he made a protected disclosure described under

5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 8 at 2.

This statement of law is correct. Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 5 (2016). However, the administrative judge did not explain,

for example, how the appellant could prove exhaustion or define what constitutes

4

We find that the appellant exercised due diligence in seeking technical support from

the Board for the period he was unable to access his e-Appeal account and view the

administrative judge’s order. PFR, Tab 1 at 5-6.

8

a protected disclosure or activity. E.g., Cooper v. Department of Veterans

Affairs, 2023 MSPB 24, ¶ 14 (defining what constitutes a protected disclosure for

purposes of an IRA appeal); Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶¶ 10-11 & n.7 (discussing the types of submissions that might be

sufficient to prove exhaustion by preponderant evidence). On remand, the

administrative judge should provide explicit information to the parties regarding

how the appellant may establish jurisdiction over an IRA appeal.

¶15 Finally, we turn to the appellant’s claim that the agency violated USERRA.

The appellant invoked USERRA below, and again cites the statute on review.

IAF, Tab 1 at 39, Tab 5 at 3, Tab 7 at 6; PFR File, Tab 1 at 11. He alleges that he

was retaliated against for asserting another employee’s USERRA rights. PFR

File, Tab 1 at 10-12. Individuals like the appellant who have not completed

1 year of current continuous service in the same or similar positions qualify as

“persons” under USERRA, and thus are not excluded from filing appeals under

the provisions of that statute. Henderson v. U.S. Postal Service, 95 M.S.P.R. 454,

¶ 6 (2004). An administrative judge may dismiss a USERRA appeal only if the

appellant was placed on specific notice of what he needed to show or allege to

establish Board jurisdiction over his USERRA claim, and he failed to make the

requisite showing or allegations. Goldberg v. Department of Homeland Security,

99 M.S.P.R. 660, ¶ 5 (2005) (citing, along with another case, Burgess, 758 F.2d

at 643-44). Here, the administrative judge never advised the appellant of what he

must do to establish jurisdiction over a USERRA claim. Instead, she stated in the

initial decision that the appellant could file a separate USERRA appeal if he

wished. ID at 6 n.2. Because the appellant was never apprised of his rights and

burdens under USERRA, remand is appropriate. Walker v. Department of Health

and Human Services, 99 M.S.P.R. 367, ¶ 10 (2005).

¶16 To establish jurisdiction over a USERRA retaliation claim, an appellant

must make nonfrivolous allegations that (1) he engaged in activity protected

under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment or took

9

an adverse employment action against him, and (3) his protected activity was a

motivating factor in the agency’s action. Kitlinski v. Department of Justice,

2023 MSPB 13, ¶ 8. The appellant alleged that while at the agency, at least two

different supervisors ordered him to violate USERRA. Specifically, he alleged

that they told him to “deny” a subordinate’s military orders because she

“volunteered” for her military service and her “team was ‘short staffed,’” which

he argues was illegal. IAF, Tab 1 at 39 (emphasis omitted). Although not

entirely clear, he suggested that the agency took adverse employment actions

against him as a result. IAF, Tab 1 at 30, 39, Tab 7 at 5-6; PFR File, Tab 1

at 11-12. On remand, the administrative judge should advise the parties regarding

how to establish jurisdiction over a USERRA claim and provide them with an

opportunity to respond.

¶17 The appellant requests that the Board compel the agency to respond to his

discovery requests. PFR File, Tab 1 at 2, 4, 6, 13. Because he did not exercise

due diligence by filing a motion to compel during the proceedings below, we deny

his request. IAF, Tab 2 at 6-7; see Boston v. Department of the Army,

122 M.S.P.R. 577, ¶ 12 (2015) (declining to grant review based on an appellant’s

assertion that the agency did not respond to his interrogatories when the

administrative judge advised the appellant of Board’s regulations regarding

discovery and the appellant did not file a motion to compel below). The appellant

also contends that the administrative judge did not read and consider his entire

initial appeal because she “fail[ed] to address the Appellant’s documented

concerns in her Initial Decision.” PFR File, Tab 1 at 2. However, an

administrative judge’s failure to mention all of the evidence of record does not

mean that she did not consider it in reaching her decision. Marques v.

Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,

776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, as discussed in this order,

the appellant will have an opportunity on remand to address the relevant

jurisdictional issues. In doing so, he may refer to evidence that is already in the

10

record as well as submit new evidence. In addition, despite our ruling above and

given that the appellant did not receive adequate notice below as to his

jurisdictional burdens, the appellant may seek to conduct discovery anew,

including on the jurisdictional issues, at the administrative judge’s discretion.

Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329, ¶ 9

(2007) (an appellant may request discovery of relevant materials to assist him in

meeting his burden of establishing the Board’s jurisdiction).

¶18 As set forth above, we remand this appeal for the administrative judge to

provide the appellant with notice of how to establish jurisdiction over his claims

of reprisal for whistleblowing and for asserting another employee’s rights under

USERRA. If the administrative judge determines that the appellant establishes

jurisdiction over either or both claims on remand, he is entitled to his requested

hearing on the merits. IAF, Tab 1 at 2, Tab 5 at 5; see Salerno, 123 M.S.P.R.

230, ¶ 5 (providing that once an appellant establishes jurisdiction over his IRA

appeal, he is entitled to a hearing on the merits of his claim); Gossage v.

Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (stating that once an

appellant has established Board jurisdiction over his USERRA claim, he has an

unconditional right to a hearing on the merits). After closing the record on

remand, the administrative judge must issue a remand initial decision. Assuming

that the parties present no additional evidence or argument on remand

establishing jurisdiction over the appellant’s termination under chapter 75 or

5 C.F.R. § 315.806, the administrative judge may incorporate into her remand

initial decision her prior findings that the Board lacks jurisdiction under these

provisions.

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ORDER

¶19 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.