The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEYONA R. HARRIS, DOCKET NUMBER
Appellant, CH-315H-14-0316-I-1
v.
DEPARTMENT OF VETERANS DATE: August 15, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Keyona R. Harris, Chicago, Illinois, pro se.
Janet M. Kyte, Esquire, Hines, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and
authorities, 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).
BACKGROUND
¶2 The appellant, a nonpreference eligible, was appointed to a GS-3 Nursing
Assistant position at the Jesse Brown Veterans Affairs Medical Center effective
February 24, 2013. Initial Appeal File (IAF), Tab 6 at 8. The appointment was
subject to the completion of a 1-year initial probationary/trial period. Id. The
agency terminated the appellant effective February 20, 2014, for performance
problems. IAF, Tab 1 at 8-10; Petition for Review (PFR) File, Tab 5 at 12. She
timely filed an appeal to the Board. IAF, Tab 1. In the first order on
jurisdiction, the administrative judge provided incorrect information pertaining
to competitive service employees, rather than excepted service employees. IAF,
Tab 2 at 2. The administrative judge issued a second jurisdictional order
purporting to correct the first order, which explained: (1) the Board only has
jurisdiction over Veterans Health Administration employees appointed under the
authority of 38 U.S.C. § 7401(3), and (2) upon the administrative judge’s review,
section 7401(3) did not appear to include nursing assistants, so it was likely that
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the Board did not have jurisdiction to hear her appeal. 2 IAF, Tab 7 at 2. The
administrative judge allowed the appellant 15 days to file evidence and argument
to prove that her appeal was within the Board’s jurisdiction. Id. The
administrative judge also ordered the agency to clarify the statutory authority
under which the appellant had been appointed. Id. The appellant timely
responded but addressed only the merits of her appeal. IAF, Tab 8. The agency
did not respond.
¶3 The administrative judge issued an initial decision, without holding the
requested hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 9,
Initial Decision (ID) at 1. Specifically, the administrative judge found that the
appellant did not qualify as an “employee” with Board appeal rights under
5 U.S.C. § 7511(a)(1)(C) because she was an excepted service employee serving
a probationary period with less than 1 year of current continuous service with the
agency. 3 Id. at 2-3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant filed a request for reconsideration and review with the
Central Regional Office, which forwarded the pleading to the Clerk of the Board,
which docketed it as a timely filed petition for review. PFR File, Tabs 1, 2. The
appellant does not challenge the administrative judge’s jurisdictional finding but
instead challenges the merits of her termination. 4 PFR File, Tab 1. The agency
2
In fact, the appellant was appointed under the authority of 38 U.S.C. § 7401(3). See
PFR File, Tab 5 at 10.
3
The administrative judge’s finding that the appellant had less than 1 year of current
continuous service is factually correct; however, we note that it is not the correct
jurisdictional inquiry under the applicable statutory provision, which requires 2 years of
current continuous service to qualify as an “employee” with Board appeal rights, where,
as here, the appellant is not a preference eligible. 5 U.S.C. § 7511(a)(1)(C)(ii).
4
In support of her petition for review, the appellant submits doctors’ notes and a
witness statement to rebut the agency’s allegations of attendance and behavior
problems. PFR File, Tab 1. The appellant also filed another pleading, which has been
considered as a motion for leave to submit an additional pleading, asking for leave to
4
has submitted a response opposing appellant’s petition for review. PFR File,
Tab 5 at 4-6.
¶5 As a preliminary matter, we note that the appellant was not notified of her
jurisdictional burden as a nonpreference-eligible excepted service probationary
employee at any time prior to the initial decision. See IAF, Tabs 2, 7. Although
the administrative judge issued two separate orders on jurisdiction, neither
mentioned the relevant jurisdictional statute, 5 U.S.C. § 7511(a)(1)(C). See IAF,
Tabs 2, 7. However, an administrative judge’s failure to provide an appellant
with proper notice regarding an issue can be cured if the initial decision itself
puts the appellant on notice of what she must do to address the issue, thus
affording her with the opportunity to meet her burden in a petition for review.
See Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008); Mapstone v.
Department of the Interior, 106 M.S.P.R. 691, ¶ 9 (2007). Here, we find that the
initial decision, which relied on the correct statutory provision, placed the
appellant on notice of her jurisdictional burden and that she was afforded an
opportunity to meet her jurisdictional burden in the petition for review.
¶6 On review, the appellant does not challenge, and we discern no reason to
disturb, the administrative judge’s finding that the Board lacked jurisdiction over
this appeal. ID at 2-3. Only an “employee,” as defined under 5 U.S.C.
chapter 75, subchapter II, can appeal to the Board from an adverse action such as
a removal. Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210, ¶ 8
(2009); see 5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d). A nonpreference-eligible
individual in the excepted service is an “employee” within the meaning of
5 U.S.C. § 7511 only if she: (1) is not serving a probationary or trial period
submit additional information pertaining to her termination. PFR File, Tab 3.
However, the appellant’s arguments and evidence regarding her termination have no
bearing on the jurisdictional issue before the Board. We deny the appellant’s motion
for leave to submit an additional pleading upon finding that she has not shown that the
alleged new evidence is material to the dispositive issues in this case. See 5 C.F.R.
§§ 1201.114(k), 1201.115(d).
5
under an initial appointment pending conversion to the competitive service; or
(2) has completed 2 years of current continuous service in the same or similar
positions in an executive agency under other than a temporary appointment
limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i)-(ii). Because it is
undisputed that the appellant was serving a 1-year probationary period and had
less than 2 years of current continuous service with an executive agency, IAF,
Tab 1, PFR File, Tab 5 at 10, the Board does not have jurisdiction to hear
her appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
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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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.