The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALERIE C. PINKSTON, DOCKET NUMBER
Appellant, AT-0752-23-0301-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: February 20, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Valerie C. Pinkston , Jonesboro, Georgia, pro se.
Javon Coatie , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
On March 28, 2022, the agency appointed the appellant as a GS-05 Contact
Representative position, subject to a 1-year probationary period. Initial Appeal
File (IAF), Tab 15 at 4. On September 16, 2022, the appellant resigned from her
position. IAF, Tab 10 at 8-9. As relevant here, she filed an equal employment
opportunity (EEO) complaint with the agency, alleging that it constructively
discharged her based on her religion. IAF, Tab 1 at 19. On March 20, 2023, the
agency issued a final agency decision finding no discrimination and constructive
discharge. Id. at 19-25.
The appellant timely filed the instant mixed-case appeal. IAF, Tab 1; see
5 C.F.R. § 1201.154(b)(1). The administrative judge issued a jurisdiction order
noting that the Board may not have jurisdiction over the appellant’s appeal,
setting forth the jurisdictional burden over involuntary resignation claims and
ordering the appellant to file evidence and argument amounting to a nonfrivolous
allegation that the Board had jurisdiction over her appeal. IAF, Tab 3 at 2-3. The
appellant submitted numerous documents that appear to detail the merits of her
alleged involuntary resignation; however, her submissions were not responsive to
the jurisdictional order. IAF, Tabs 3-7, 9. The agency responded, requesting that
the Board dismiss the appellant’s appeal for lack of jurisdiction because she
voluntarily resigned from her position. IAF, Tab 12. Subsequently, the
administrative judge recognized that it appeared that the appellant was serving in
a probationary period and issued an order advising the appellant that she had to
establish that she was an “employee” under 5 U.S.C. § 7511(a)(1)(A) entitled to
Board appeal rights and ordering her to file evidence in support of her claim.
IAF, Tab 16. In response, the appellant submitted documents in support of her
claim that she had prior Federal service. IAF, Tabs 18-19.
3
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial
Decision (ID) at 1, 4. Specifically, the administrative judge found that the
appellant was serving an initial probationary period and had not completed 1 year
of current continuous service; thus, she lacked chapter 75 adverse action appeal
rights. ID at 4. She further found that the appellant failed to make a nonfrivolous
allegation that her probationary termination was based on partisan political
reasons or marital status. Id.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s
petition, PFR File, Tab 5, to which the appellant has replied, PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is not plenary; it 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). To establish Board
jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things,
show that she satisfied one of the definitions of “employee” in 5 U.S.C. § 7511(a)
(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).
For an individual in the competitive service, such as the appellant, this
means that she either must not be serving a probationary or trial period under an
initial appointment, or must have completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less. 5 U.S.C.
§ 7511(a)(1)(A)(i), (ii). An individual who has not served a full year under her
appointment can show that she has completed the probationary period, and so is
no longer a probationer, by tacking on prior service if: (1) the prior service was
rendered immediately preceding the probationary appointment; (2) it was
performed in the same agency; (3) it was performed in the same line of work; and
(4) it was completed with no more than one break in service of less than 30 days.
4
Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R. § 315.802(b). Alternatively, an
individual can show that, while she may be a probationer, she is an “employee”
with chapter 75 appeals rights because, immediately preceding the adverse action,
she had completed at least 1 year of current continuous service without a break in
Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9. For
the reasons that follow, we find that this appeal must be remanded to give the
appellant an opportunity to meet her burden to establish that she is an
“employee.”
We remand the appeal for a determination of whether the Board has chapter 75
jurisdiction over the appellant’s removal appeal.
Generally, an appellant has the burden of proving by preponderant evidence
that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). However, 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). Based
on our review of the record, we find that the appellant did not receive explicit
information regarding the jurisdictional standard to show that she qualifies as an
“employee” with appeal rights under 5 U.S.C. Chapter 75. The administrative
judge’s orders, the initial decision, and the agency’s submissions did not provide
the pro se appellant with proper notice of the jurisdictional requirements for
establishing her status as an “employee.” See Harris v. U.S. Postal Service,
112 M.S.P.R. 186, ¶ 9 (2009); see also Scott v. Department of Justice,
105 M.S.P.R. 482, ¶ 6 (2007) (explaining that an administrative judge’s failure to
provide an appellant with proper notice can be cured if the agency’s pleadings or
the initial decision puts the appellant on notice of what he must do to establish
jurisdiction).
We therefore find that this case should be remanded to allow the appellant
an opportunity to establish that she is an “employee” as defined by chapter 75.
On remand, the administrative judge shall allow the parties to present additional
5
evidence and argument relating to the jurisdictional issue. If, on remand, the
administrative judge finds that the appellant has not established that she is an
“employee” with chapter 75 appeal rights, she shall issue a remand initial
decision dismissing the appeal for lack of jurisdiction. If, however, she finds that
the appellant is an “employee,” the administrative judge shall determine whether
the appellant has made nonfrivolous allegations that, if proven, could establish
jurisdiction over her involuntary resignation claim. If the administrative judge
finds that the appellant made nonfrivolous allegations, the appellant is entitled to
a jurisdictional hearing at which she must prove jurisdiction by a preponderance
of the evidence. Garcia v. Department of Homeland Security, 437 F.3d 1322,
1344 (Fed. Cir. 2006) (en banc). If the administrative judge determines that the
Board has jurisdiction over that claim, the administrative judge shall adjudicate
the merits of the appellant’s appeal.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order. 2
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.