The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA MILLER, DOCKET NUMBER
Appellant, SF-315H-25-1294-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 25, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Rebecca Miller , Waldorf, Maryland, pro se.
Leah S. Serrano , Washington, D.C., for the agency.
Roni Reed , Esquire, Walla Walla, Washington, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
AFFIRM the initial decision’s findings regarding the appellant’s chapter 75 and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulatory appeal rights, and REMAND the appeal to the regional office for
further adjudication as an individual right of action (IRA) appeal in accordance
with this Remand Order.
BACKGROUND
Effective March 25, 2024, the appellant received a career conditional
appointment to the competitive service position of GS-0560-09 Budget Analyst
with the agency in Pasco, Washington, subject to a 1-year initial probationary
period. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 13. Effective March 24,
2025, the agency terminated her from that position for several deficiencies in
conduct. IAF, Tab 5 at 6-12.
The appellant filed a timely Board appeal and acknowledged on her appeal
form that she was serving a probationary period at the time of her termination.
IAF, Tab 1 at 1. She alleged that her termination was motivated by partisan
political reasons and whistleblower retaliation, and she indicated that she filed
various complaints, including with the Office of Special Counsel (OSC) on
March 29, 2024. Id. at 2-3. She also appeared to suggest that her termination
was due to discrimination. Id. at 2. The administrative judge issued a
jurisdictional order notifying the appellant that the Board may lack jurisdiction
over her appeal based on her probationary status, informing her of the standards
for establishing Board jurisdiction under 5 U.S.C. chapter 75 and 5 C.F.R.
§§ 315.805-315.806, and directing her to file evidence and argument on the issue
of jurisdiction. IAF, Tab 3. The appellant did not respond. The agency replied
and moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 5 at 4. The
administrative judge issued an order to show cause directing the appellant to
explain why she did not respond to the jurisdictional order and why the appeal
should not be dismissed for lack of jurisdiction. IAF, Tab 6. The appellant again
did not respond.
3
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1. The administrative judge concluded that the appellant did not
nonfrivolously allege that she met the definition of an “employee” under 5 U.S.C.
§ 7511(a)(1)(A) with a statutory right to appeal her termination to the Board. ID
at 3-4. The administrative judge also concluded that the appellant did not have a
regulatory right of appeal under 5 C.F.R. §§ 315.805-315.806. ID at 4-5. The
administrative judge explained that although the appellant had multiple
opportunities to expand on her broad and unsupported statement that her
termination was based on partisan political reasons, she failed to provide any
factual information to support her conclusory claim. Id. The administrative
judge also noted the appellant’s claim that her termination was motivated by
whistleblower retaliation and that she had filed a complaint with OSC, and stated
that the Board “may have jurisdiction over this claim as an Individual Right of
Action (IRA) appeal.” ID at 5. The administrative judge briefly addressed the
general rule concerning the timeline for filing an IRA appeal and told the
appellant that she could file a separate IRA appeal with the Board. Id.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. On review, she reasserts without elaboration that her termination was
motivated by partisan political reasons and whistleblower retaliation, argues the
merits of her termination, and suggests that she was subjected to discrimination.
Id. at 2, 6-7. The agency has filed a response in opposition. PFR File, Tab 3.
The appellant has filed a reply. PFR File, Tab 4. In her reply, the appellant again
discusses the merits of her termination, notes her OSC complaint, and provides
various documents such as emails, photographs, and a narrative account and
timeline of her alleged toxic work environment. Id. at 1-82.
4
ANALYSIS
The administrative judge correctly found that the appellant did not make a
nonfrivolous allegation of jurisdiction under 5 U.S.C. chapter 75 or 5 C.F.R.
§ 315.806.
The Board’s jurisdiction 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). The appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). If the appellant makes a nonfrivolous allegation of fact
that, if proven, would establish the Board’s jurisdiction, then she is entitled to a
hearing at which she must prove jurisdiction. Williams v. Department of Defense,
76 M.S.P.R. 270, 273 (1997).
To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual
must, among other things, show that she satisfies 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, this
means that she must either not be serving a probationary or trial period under an
initial appointment, or have completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less. Id.; 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.
Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R.
5
§ 315.802(b) (2025). 2 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.
An individual in the competitive service who does not have a statutory
right of appeal may nevertheless have a regulatory right to appeal under 5 C.F.R.
§ 315.806 if she alleges that her termination was based on partisan political
reasons or marital status discrimination, or that her termination was based in
whole or in part on conditions arising before her appointment and was not
effected in accordance with certain procedural requirements under 5 C.F.R.
§ 315.805. Walker, 119 M.S.P.R. 391, ¶ 5.
On review, the appellant does not challenge the administrative judge’s
finding that she failed to nonfrivolously allege that she is an “employee” under
5 U.S.C. § 7511(a)(1)(A) with a statutory right to appeal to the Board. The
record reflects that the administrative judge correctly found it undisputed that the
appellant was serving a 1-year probationary period at the time of her termination
and had completed less than 1 year of current continuous service at the time of
her termination, and that, although she had prior Federal service, the record does
not show that her prior service was performed immediately preceding her
termination without a break in Federal civilian employment of a workday or that
it was performed in the same agency, in the same line of work, and with no more
than one break in service of less than 30 days. ID at 3-4; see Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions).
2
Effective June 24, 2025—after the appellant’s termination—OPM rescinded subpart H
of part 315 of Title 5 of the Code of Federal Regulations pursuant to Executive Order
No. 14284. Strengthening Probationary Periods in the Federal Service, 90 Fed. Reg.
26727-01 (June 24, 2025).
6
Instead, the appellant reasserts on review that her termination “was
motivated by partisan political reasons,” which, as discussed above, could afford
her a regulatory right to appeal under 5 C.F.R. § 315.806. PFR File, Tab 1 at 6;
see also IAF, Tab 1 at 2. However, as the administrative judge found in the
initial decision, the appellant does not provide any evidence or argument to
support her claim. As a result, we agree that the appellant has also failed to
nonfrivolously allege a regulatory right of review. See ID at 4-5; see also Smirne
v. Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010) (an appellant’s
allegations regarding marital status or partisan political discrimination must be
more than mere conjecture, and the appellant must provide supporting facts to
show that the allegation is not merely a pro forma pleading). Accordingly, we
discern no basis to disturb the administrative judge’s conclusion that the Board
does not have jurisdiction over the appellant’s probationary termination appeal.
We note that the appellant’s petition for review largely challenges the
merits of the agency’s termination decision, rather than addressing the Board’s
jurisdiction over the appeal. Such arguments again do not provide a basis to
disturb the initial decision. See Sapla v. Department of the Navy, 118 M.S.P.R.
551, ¶ 7 (2012) (holding that an appellant’s arguments concerning the merits of
her appeal were not relevant to the question of jurisdiction); Rivera v.
Department of the Navy, 114 M.S.P.R. 52, ¶ 7 (2010) (same); Yakupzack v.
Department of Agriculture, 10 M.S.P.R. 180, 182 (1982) (stating that the Board’s
review of probationary terminations does not include a review of the merits of the
termination action).
We nevertheless remand the appeal for further proceedings because the appellant
did not receive explicit notice of what is required to establish Board jurisdiction
based on her allegations.
Despite the above finding, we conclude that the appeal must be remanded
for further proceedings under 5 U.S.C. § 7701 because the appellant is clearly
trying to raise an IRA appeal under the Whistleblower Protection Enhancement
7
Act of 2012. As discussed above, the appellant explicitly alleged on her initial
appeal form that the agency terminated her in reprisal for whistleblowing. IAF,
Tab 1 at 2. She indicated that she had filed “cases within DoD” and a
whistleblower complaint with OSC on March 29, 2024, and that OSC terminated
its investigation into her complaint on July 17, 2024. 3 Id. at 2-3. In her petition
for review, she raises her whistleblower retaliation claims again and indicates that
she has filed multiple whistleblower complaints. 4 PFR File, Tab 1 at 6, Tab 4
at 1. Although the administrative judge notified the appellant in the initial
decision that the Board may have jurisdiction over her whistleblower retaliation
claim as an IRA appeal, 5 and informed her of the general rule that IRA appeals
must be filed with the Board within 65 days after the date of OSC’s final letter,
she did not otherwise discuss or make any findings about the appellant’s
whistleblower retaliation claim. Id.
An appellant must receive explicit information on what is required to
establish Board jurisdiction. When it appears that an appellant is attempting to
allege that her appeal is within the Board’s jurisdiction as an IRA appeal, the
administrative judge should advise the parties of the corresponding burden.
Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.
1985); Burwell v. Department of the Army, 78 M.S.P.R. 645, ¶¶ 8-9 (1998)
(remanding an appeal due to the administrative judge’s failure to advise the
appellant what was required to establish Board jurisdiction over an IRA appeal).
3
We recognize that the appellant was not terminated until March 24, 2025.
4
One of the documents that the appellant submits with her petition for review reply is a
July 7, 2025 email to “OPM OIG Whistleblower.” PFR File, Tab 4 at 54-55.
5
Although the administrative judge did not explicitly state so, the Board lacks
jurisdiction over a whistleblower reprisal claim raised as an affirmative defense unless
it is raised in connection with an otherwise appealable action. See Wren v. Department
of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices under
5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982). Because of this, the Board also lacks jurisdiction over
the appellant’s claim to the extent that she contends that her termination was due to
discrimination. IAF, Tab 1 at 2; PFR File, Tab 1 at 6-7.
8
Although the administrative judge’s jurisdictional order informed the appellant of
her burden of establishing jurisdiction over her appeal as a challenge to her
probationary termination, it did not apprise the appellant of her burden of proving
Board jurisdiction over her appeal as an IRA appeal. See IAF, Tab 3. Neither the
agency’s pleadings nor the administrative judge’s initial decision provided
appropriate full jurisdictional notice for an IRA appeal. See Harris v. U.S. Postal
Service, 112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative judge’s
failure to provide an appellant with proper Burgess notice can be cured if the
agency’s pleadings or the initial decision contain the notice that was otherwise
lacking). Although the administrative judge notified the appellant that she could
file a separate individual right of action appeal, because the appellant explicitly
raised this issue on her initial appeal form, we find it appropriate to remand the
appeal on this matter.
The appellant must be advised that, to establish Board jurisdiction over an
IRA appeal, she must show that she exhausted her administrative remedies before
OSC and make nonfrivolous allegations of the following: (1) she made a
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 by 5 U.S.C. § 2302(a).
Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023); see 5 U.S.C.
§§ 1214(a)(3), 1221(a), (e)(1). Because the appellant was not so informed, it is
necessary to remand this appeal to the regional office to provide her with an
opportunity to establish jurisdiction. Burwell, 78 M.S.P.R. 645, ¶ 9.
9
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.