Opinion

Andrea Hill v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Dec 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.5%

stating that the Board may not reach discrimination issues unless jurisdiction is established with respect to the underlying adverse action

How later courts described this case

stating that the Board may not reach discrimination issues unless jurisdiction is established with respect to the underlying adverse action

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREA HILL, DOCKET NUMBER

Appellant, AT-315H-21-0430-I-1

DEPARTMENT OF THE NAVY, DATE: December 23, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cameron Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Grant Jensen , Esquire, Albany, Georgia, 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 the appellant’s appeal of her termination during her initial probationary

period for lack of jurisdiction. On petition for review, the appellant argues that

the agency discriminated against her on the basis of her disability, sex, and race,

and in retaliation for prior equal employment opportunity (EEO) activity.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The agency appointed the appellant to a GS-11 Physical Scientist position

on May 28, 2019, and it terminated the appellant on May 25, 2021. Initial Appeal

File, Tab 5 at 13, 20-21. As noted in the initial decision, the appellant does not

dispute that she was hired into a position subject to the National Defense

Authorization Act for Fiscal Year 2016 (2016 NDAA). Initial Appeal File, Tab 6,

Initial Decision at 3. Congress enacted the 2016 NDAA on November 25, 2015,

Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA extended the probationary

period for an individual appointed to a permanent competitive - service position at

the Department of Defense to a 2-year probationary period and provided that such

individual only qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if

she has completed 2 years of current continuous service. Pub. L. No. 114-92, §

1105, 129 Stat. 726, 1023-24 (codified as relevant here at 10 U.S.C. § 1599e and

5 U.S.C. § 7511(a)(1)(A)(ii)). 2 As the administrative judge correctly found, the

The National Defense Authorization Act for Fiscal Year 2022, enacted on

December 27, 2021, repealed 10 U.S.C. § 1599e and the 2-year probationary period,

appellant did not meet the statutory definition of an employee and thus did not

have a statutory right to appeal to the Board. Similarly, the administrative judge

also properly found that the appellant did not raise allegations establishing a

regulatory right of appeal. 5 C.F.R. §§ 315.805-806.

In her petition for review, the appellant argues that she has experienced

discrimination and that her termination was also based on retaliation for protected

EEO activity. Petition for Review File, Tab 1 at 6-7. Such claims are not an

independent source of Board jurisdiction. See, e.g., Garcia v. Department of

Homeland Security, 437 F.3d 1322, 1325 (Fed. Cir. 2006) (stating that the Board

may not reach discrimination issues unless jurisdiction is established with respect

to the underlying adverse action); Hurston v. Department of the Army,

113 M.S.P.R. 34, ¶ 11 (2010) (stating that if the Board lacks jurisdiction over a

probationer’s termination, the Board has no independent jurisdiction to consider

her discrimination claims). Thus, as the administrative judge found, the Board

lacks jurisdiction over the appellant’s claims. 3

NOTICE OF APPEAL RIGHTS 4

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

effective December 31, 2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541 , 1950. That

change does not affect the outcome of this appeal.

Although the Board lacks jurisdiction over the appellant’s claims, such claims may

also be within the purview of the EEO process. The Board makes no finding as to the

merits or timeliness of such claims.

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.

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

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. 5 The court of appeals must receive your petition for

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.

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