Opinion

Xanthe M Garcia v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Sep 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

holding that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights”

How later courts described this case

holding that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

XANTHE MONETTE GARCIA , DOCKET NUMBER

Appellant, SF-0714-18-0445-I-1

DEPARTMENT OF VETERANS DATE: September 19, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sheila Brown , North Hills, California, for the appellant.

Maya Soloway , Los Angeles, California, 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

sustained her removal. For the reasons discussed below, we GRANT the

appellant’s petition for review. We REVERSE the initial decision’s findings

regarding the agency’s removal action and find that the removal action is NOT

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

SUSTAINED as it is not in accordance with law. We AFFIRM the administrative

judge’s findings regarding the suspension action.

BACKGROUND

In August 2002, the agency appointed the appellant to the excepted service

position of Licensed Vocational Nurse with its Greater Los Angeles Healthcare

System. Initial Appeal File (IAF), Tab 4 at 7, 133-34. On February 9, 2018, the

agency issued the appellant a 14-day suspension based on charges of absence

without leave and inappropriate conduct. Id. at 91-97. On February 26, 2018, it

proposed her removal under the authority of 38 U.S.C. § 714 based on charges of

failure to properly carry out [her] duties as Licensed Vocational Nurse (two

specifications) and inappropriate conduct (one specification). Id. at 28-30. The

appellant served the 14-day suspension beginning March 4, 2018, and returned to

duty on March 18, 2018. Id. at 85-86. On March 21, 2018, the deciding official

sustained the appellant’s removal, effective April 9, 2018. Id. at 21, 23-26.

On April 13, 2018, the appellant filed the instant Board appeal challenging

her 14-day suspension and removal. IAF, Tab 1. In an order summarizing the

prehearing conference, the administrative judge notified the appellant that the

Board does not have jurisdiction over suspensions of less than 15 days. IAF, Tab

20 at 2. Following a hearing on her removal appeal, the administrative judge

issued an initial decision on August 27, 2018, sustaining the agency’s charges and

the penalty of removal. IAF, Tab 24, Initial Decision (ID) at 10.

On October 2, 2018, the appellant submitted a petition for review of the

initial decision via e-Appeal, along with an explanation related to the untimely

filing of her petition for review. Petition for Review (PFR) File, Tab 1 at 3-4.

Concerning her reasons for requesting review, the appellant reargues that she did

not commit the misconduct charged by the agency in its removal action and

suggests that the administrative judge erred in analyzing the hearing testimony.

Id. at 5-7. The agency has responded, requesting that the Board dismiss the

appellant’s petition for review based on untimeliness, and arguing that she did not

show any material factual error in the initial decision or any other criterion for

granting a petition for review. PFR File, Tab 3.

ANALYSIS

We waive the time limit for the filing of the appellant’s petition for review.

A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision or, if the appellant shows that the initial

decision was received more than 5 days after the initial decision was issued,

within 30 days after the date the appellant received the initial decision. 5 C.F.R.

§ 1201.114(e). The Board will waive this time limit only upon a showing of good

cause for the delay in filing. 5 C.F.R. § 1201.114(g). The length of the delay is a

factor that must be considered in every good cause determination, and a minimal

delay favors a finding of good cause. See Walls v. Merit Systems Protection

Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994). To establish good cause for the

untimely filing of a petition, a party must show that she exercised due diligence

or ordinary prudence under the particular circumstances of the case. See Alonzo

v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine

whether an appellant has shown good cause, the Board will consider the length of

the delay, the reasonableness of her excuse and her showing of due diligence,

whether she is proceeding pro se, and whether she has presented evidence of the

existence of circumstances beyond her control that affected her ability to comply

with the time limits or of unavoidable casualty or misfortune which similarly

shows a causal relationship to her inability to timely file her petition. See

Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d,

79 F.3d 1167 (Fed. Cir. 1996) (Table).

We find that the extremely minimal nature of the delay, along with the

appellant’s explanation for the delay, supports a finding of good cause in this

case. The appellant concedes that she received the initial decision within 5 days

of its issuance on August 27, 2018. ID; PFR File, Tab 1 at 3. Thus, her petition

for review was due on October 1, 2018. 5 C.F.R. § 1201.114(e). The date of

filing for pleadings filed via e–Appeal is the date of electronic submission. 5

C.F.R. § 1201.4(l). All pleadings filed via e–Appeal are time stamped with

Eastern Time, but the timeliness of a pleading will be determined based on the

time zone from which the pleading was submitted. 5 C.F.R. § 1201.14( l)(1). The

appellant’s petition for review, submitted via e-Appeal on October 2, 2018, is

time-stamped 03:10:47. PFR File, Tab 1. As her address of record at the time

was in the Pacific Time Zone, we find that her appeal was submitted at 12:10:47

a.m. Pacific Time and, thus, was untimely by only 10 minutes.

Furthermore, the appellant, who is represented by her union representative,

stated that she filed her petition for review without the assistance of her union

representative after her union representative informed her that she was having

trouble accessing e-Appeal. IAF, Tab 8 at 3; PFR File, Tab 1 at 4. Although an

appellant is generally responsible for any purported deficiencies related to her

representation, see Reaves v. Department of Veterans Affairs , 92 M.S.P.R. 352,

¶ 7 (2002), we find that the appellant’s actions of submitting a petition for review

herself via e-Appeal only 10 minutes after the deadline demonstrated due

diligence under the circumstances. Accordingly, we find good cause for her

untimely filing.

If good cause has been demonstrated, the Board will determine whether the

agency has shown it would be prejudiced by a waiver of the time limit. See

Moorman, 68 M.S.P.R. at 63. The agency has neither indicated nor made any

showing of prejudice caused by the 10-minute filing delay. PFR File, Tab 3 at 4.

Therefore, we waive the time limit for the filing of the appellant’s petition for

review.

The agency’s removal action must be reversed.

Appointments of medical professionals in the Veterans Health

Administration are governed by 38 U.S.C. § 7401. Individuals appointed

pursuant to 38 U.S.C. § 7401(3) are hybrid employees, which is a category of

agency employees subject to both Title 38 and Title 5 of the United States Code.

U.S. Department of Veterans Affairs v. Federal Labor Relations Authority , 9 F.3d

123, 126 (D.C. Cir. 1993); see James v. Von Zemenszky, 284 F.3d 1310, 1314

(Fed. Cir. 2002). Since the issuance of the initial decision in this case, the Board

issued a precedential Opinion and Order in Richardson v. Department of Veterans

Affairs, 2023 MSPB 1, ¶¶ 15-28, holding that the agency does not have the

authority under 38 U.S.C. § 714 to remove a hybrid employee appointed under 38

U.S.C. § 7401(3). We reasoned that hybrid employees are covered by 38 U.S.C.

§ 7403(f)(3), which provides that “all matters relating to adverse actions . . . shall

be resolved under the provisions of title 5 as though such individuals had been

appointed under that title.” Id., ¶ 12 (quoting 38 U.S.C. § 7403(f)(3)).

We find that the appellant was a hybrid employee appointed under 38

U.S.C. § 7401(3). Section (3) of 7401 includes “licensed practical or vocational

nurses,” like the appellant, among other positions. 38 U.S.C. § 7401(3).

Furthermore, the agency has consistently represented in its pleadings that the

appellant was a Title 38 hybrid employee. IAF, Tab 4 at 7, Tab 14 at 5. We note

that the legal authority cited in the appellant’s appointment Standard Form 50

(SF-50) was section (1) of 7401, as opposed to section (3) of 7401; however, we

give little weight to this document for several reasons. IAF, Tab 4 at 131; see

generally Grigsby v. Department of Commerce, 729 F.2d 772, 776 (Fed. Cir.

1984) (holding that “the SF-50 is not a legally operative document controlling on

its face an employee’s status and rights”). First, section (1) of 7401 authorized

the appointments of “physicians, dentists, podiatrists, optometrists, registered

nurses, physician assistants, and expanded-function dental auxiliaries,” and there

is no indication in the record that the appellant held any of these credentials. 38

U.S.C. § 7401(1) (September 2003); IAF, Tab 4 at 131. Rather, the SF-50

indicates that her appointment was to the position of Licensed Vocational Nurse,

which is a position listed under section (3) of 7401. Id.; 38 U.S.C. § 7401(3)

(September 2003). Furthermore, the Board generally lacks jurisdiction over the

removal of a medical professional appointed under section (1) of 7401; instead,

those medical professionals are afforded internal agency procedures. See 5

U.S.C. § 7511(b)(10); 38 U.S.C. § 7425(a)(8); Yunus v. Department of Veterans

Affairs, 242 F.3d 1367, 1370 (Fed. Cir. 2001). Here, the agency notified the

appellant of her Board appeal rights in its removal decision, IAF, Tab 4 at 24,

and, as mentioned above, has conceded that she is a hybrid employee with Board

appeal rights, id. at 4. Accordingly, we find no reason to develop the record

further on this issue and conclude that the appellant was a h ybrid employee

appointed under 38 U.S.C. § 7401(3).

Thus, we find that the agency’s removal action in this case under the

authority of 38 U.S.C. § 714 is not in accordance with law. See Richardson, 2023

MSPB 1, ¶¶ 12-29. An agency action that is not in accordance with law must be

reversed by the Board. 5 U.S.C. § 7701(c)(2); Hamilton v. U.S. Postal Service,

58 M.S.P.R. 486, 488 (1993). The appellant need not show that the agency

violated her constitutional due process rights or that the erroneous action was

harmful, i.e., that it prejudiced her rights so that the outcome before the agency

was likely affected. Hamilton, 58 M.S.P.R. at 488; Stephen v. Department of the

Air Force, 47 M.S.P.R. 672, 683-84 (1991); see also Richardson, 2023 MSPB 1,

¶¶ 30-32 (finding that the Board could not sua sponte convert a 38 U.S.C. § 714

removal appeal to a 5 U.S.C. chapter 75 removal appeal because it would be

“inherently unfair”). Accordingly, we reverse the agency’s removal action. 2 If

the agency wants to take an adverse action against the appellant, it must do so in

accordance with the procedures of chapter 75, as required by section 7403(f)(3).

Because we agree with the administrative judge that the Board lacks jurisdiction over

a suspension that is not more than 14 days, our decision in this case does not disturb the

agency’s suspension action. IAF, Tab 20 at 2; see 5 U.S.C. §§ 7512(2), 7513(d).

ORDER

We ORDER the agency to cancel its removal action and to restore the

appellant effective March 21, 2018. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

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

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.

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 following