Mrs. Kimberly Anne Jones v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KIMBERLY ANNE JONES, DOCKET NUMBER

Appellant, PH-3443-15-0197-I-1

v.

DEPARTMENT OF VETERANS DATE: September 1, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Kimberly Anne Jones, Middleboro, Massachusetts, pro se.

M. Creston Rice, Esquire, Bedford, Massachusetts, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed for lack of jurisdiction her nonpromotion appeal. 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

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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interpretation of statute or 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).

¶2 The appellant works for the agency as a nonpreference-eligible excepted

service Grade I Nurse. Initial Appeal File (IAF), Tab 1 at 1, 7. On October 17,

2014, an agency professional standards board recommended that the appellant not

be promoted from Grade I to Grade II. Id. at 12-13. On January 24, 2015, she

filed a Board appeal of her nonpromotion and requested a hearing. Id. at 2-3.

¶3 The administrative judge issued an acknowledgment order in which she

informed the appellant that the Board generally lacks jurisdiction over

nonpromotions, except in cases of whistleblower reprisal, discrimination based on

uniformed service, and violations of veterans’ preference rights. IAF, Tab 2 at 3.

She ordered the appellant to file evidence and argument to show that the appeal

was within the Board’s jurisdiction. Id. The administrative judge also informed

the appellant that her appeal appeared to be untimely, apprised her of her burden

on the timeliness issue, and directed her to file evidence and argument thereon.

Id. at 2. When the appellant failed to respond to the acknowledgment order, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction without conducting a hearing. IAF, Tab 7, Initial Decision (ID). The

administrative judge did not reach the timeliness issue. ID at 3 n.1.

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¶4 The appellant has filed a petition for review alleging, as she did below, that

her nonpromotion was in retaliation for filing an equal employment opportunity

(EEO) complaint. Petition for Review (PFR) File, Tab 3; IAF, Tab 1 at 5. The

appellant also alleges that her Board appeal was untimely because she was

previously unaware of her Board appeal rights and that inclement weather

prevented her from timely responding to the acknowledgment order. PFR File,

Tab 3 at 4-5. The agency has filed a response in opposition. PFR File, Tab 5.

¶5 Notwithstanding the appellant’s failure to respond to the acknowledgment

order below, we have considered her arguments on review, and we find that they

provide no basis to disturb the initial decision. 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). As the administrative judge explained, the Board generally lacks

jurisdiction over nonpromotions. ID at 3; see Harrell v. U.S. Postal Service,

112 M.S.P.R. 492, ¶ 11 (2009). The appellant’s claim of retaliation for EEO

activity does not serve to bring the appeal within the Board’s jurisdiction. See

McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 21 (2005); Wren v.

Department of the Army, 2 M.S.P.R. 1, 2 (1980) (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).

¶6 As the administrative judge explained below, the Board may have

jurisdiction over nonpromotions under certain limited circumstances. IAF, Tab 2

at 3. Specifically, the Board may have jurisdiction over a nonpromotion in the

context of a claim under the Veterans Employment Opportunities Act of 1998

(VEOA), the Uniformed Services Employment and Reemployment Rights Act of

1994 (USERRA), the employment practice provisions of 5 C.F.R. Part 300,

Subpart A, or the Whistleblower Protection Act (WPA). However, for the

reasons set forth below, we find that none of these laws apply to the instant

appeal.

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¶7 Regarding VEOA and USERRA, the appellant has not alleged that her

nonpromotion was the product of uniformed service discrimination or that it

constituted a violation of veterans’ preference rights. Indeed, it does not appear

that the appellant would be able to raise a claim under either VEOA or USERRA

because she is not a preference eligible and there is no indication that she has

performed, has applied to perform, or has an obligation to perform uniformed

service. IAF, Tab 1 at 1, 7; cf. 5 U.S.C. § 3330a(a)(1), (d)(1) (a preference

eligible or veteran may file a Board appeal under VEOA); 38 U.S.C. §§ 4311,

4322, 4324 (a person who is a member of, applies to be a member of, performs,

has performed, applies to perform, or has an obligation to perform service in a

uniformed service may appeal a USERRA violation to the Board). Nor could the

Board have jurisdiction over this appeal as an employment practices claim under

5 C.F.R. Part 300, Subpart A, because the appellant’s position is in the excepted

service. IAF, Tab 1 at 1, 7; see 5 C.F.R. § 300.101 (5 C.F.R. Part 300, Subpart A,

applies to the competitive service).

¶8 Regarding the WPA, the appellant has not alleged that her nonselection for

promotion was in retaliation for activity protected under 5 U.S.C. § 2302(b)(8) or

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). Cf. 5 U.S.C. § 1221(a) (providing

for individual right of action (IRA) appeals to the Board concerning prohibited

personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), and (D)).

On review, the appellant appears to allege that her EEO activity constituted

protected whistleblowing. PFR File, Tab 1 at 3. However, filing an EEO

complaint is protected under 5 U.S.C. § 2302(b)(9)(A)(ii), and cannot form the

basis of an IRA appeal. See Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶ 7 (2013). Furthermore, the appellant indicated below that

she did not file a whistleblower complaint with the Office of Special Counsel

(OSC), which is a jurisdictional prerequisite to filing an IRA appeal with the

Board. IAF, Tab 1 at 4; see Yunus v. Department of Veterans Affairs, 242 F.3d

1367, 1371 (Fed. Cir. 2001) (holding that, to establish jurisdiction over an IRA

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appeal, an appellant must, among other things, show that she exhausted her

administrative remedies before OSC); Rusin v. Department of the Treasury,

92 M.S.P.R. 298, ¶ 12 (2002) (same).

¶9 Accordingly, we affirm the initial decision dismissing the appeal for lack of

jurisdiction. Because we are affirming the dismissal for lack of jurisdiction, we

do not reach the timeliness issue. See Tardio v. Department of Justice,

112 M.S.P.R. 371, ¶ 30 (2009).

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.

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 want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

you choose to file, be very careful to file on time. You may choose to request

review of the Board’s decision in the United States Court of Appeals for the

Federal Circuit or any other court of appeals of competent jurisdiction, but not

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both. Once you choose to seek review in one court of appeals, you may be

precluded from seeking review in any other court.

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 about the United States 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, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to the

United States 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 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.