The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM BROCKMAN, DOCKET NUMBER
Appellant, SF-315H-15-0479-I-1
v.
DEPARTMENT OF VETERANS DATE: December 15, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Julia Aparicio-Mercado, Esquire, Burbank, California, for the appellant.
Maureen Ney, Esquire, Los Angeles, California, 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 the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, 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. Except as expressly MODIFIED by
this final order to find that the Board has jurisdiction over the appellant’s
Veterans Employment Opportunities Act of 1998 (VEOA) claim and to dismiss
that claim for failure to state a claim upon which relief can be granted, we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant’s appointment to the position of Motor Vehicle Operator,
WG-5703-7, in the competitive service, was terminated effective March 17, 2015.
Initial Appeal File (IAF), Tab 4 at 16, 18-20. This position was subject to a
1-year probationary period that began on March 23, 2014. Id at 32. The
appellant is a preference-eligible veteran. Id.
¶3 The appellant filed an appeal alleging, in part, that the agency violated his
veterans’ preference rights. IAF, Tab 1 at 6. After affording the parties the
opportunity to address the jurisdictional issues, IAF, Tab 2, the administrative
judge dismissed the appeal for lack of jurisdiction without holding a hearing, as
requested, IAF, Tab 6, Initial Decision (ID). The administrative judge found that
the appellant failed to make a nonfrivolous allegation that he is an “employee”
with appeal rights under 5 U.S.C. chapter 75, ID at 6-12, failed to make a
nonfrivolous allegation of a basis for jurisdiction under 5 C.F.R. § 315.806, ID at
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12-14, and did not meet VEOA’s requirement that he first exhaust his remedies
before the Department of Labor (DOL), ID at 14-17.
¶4 The appellant has filed a petition for review, attaching alleged new evidence
to establish that he has now exhausted his remedy with DOL. Petition for Review
(PFR) File, Tab 1. The agency has filed an opposition to the appellant’s petition,
arguing that he has not shown that this new evidence was unavailable prior to the
record closing below. PFR File, Tab 3.
The Board does not have jurisdiction to hear the appellant’s probationary
termination claim.
¶5 Because the appellant’s appointment to a position in the competitive service
was terminated, he must satisfy the definition of “employee” set forth at 5 U.S.C.
§ 7511(a)(1)(A) to have Board appeal rights under 5 U.S.C. chapter 75. See
Henderson v. Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To
qualify as an “employee,” the appellant must show that he was not serving in a
probationary period or had 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); McCormick v. Department of the Air Force, 307 F.3d 1339,
1341-43 (Fed. Cir. 2002). The Standard Form 50 (SF-50) documenting the
appellant’s appointment states that his appointment was subject to a 1-year initial
probationary/trial period beginning on March 23, 2014. IAF, Tab 4 at 32. The
SF-50 documenting the termination of the appellant’s appointment states that the
effective date was March 17, 2015. Id. at 16. The appellant stated in his appeal
that the termination was effective on March 28, 2015. IAF, Tab 1 at 4. However,
we agree with the administrative judge’s finding that this assertion alone, without
any supporting evidence or allegations of fact that could support such a finding,
is insufficient to constitute a nonfrivolous allegation that the termination was
effective on that date. ID at 7; see 5 C.F.R. § 1201.4(s).
¶6 As found by the administrative judge, the appellant’s previous civilian
Federal service occurred more than 14 years prior to the appointment at issue and
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was at another agency; therefore, he could not tack his prior service to his service
with the agency to complete his probationary period and so he did not have 1 year
of current, continuous service at the time of his termination. ID at 8-11. A
probationary employee may nevertheless have a limited regulatory right to appeal
if he alleges that his termination was due to discrimination based on partisan
political reasons or marital status, or for conditions arising preappointment and
the required procedures were not followed. Henderson, 114 M.S.P.R. 149, ¶
9; 5 C.F.R. § 315.806. We agree with the administrative judge’s findings that the
appellant was terminated based on allegations of misconduct that occurred during
his probationary period and he has not made a nonfrivolous allegation that his
termination was based on partisan political reasons, marital status, or
preappointment reasons. ID at 14. Although the appellant contends that he did
nothing that would justify the termination of his appointment, that argument
relates to the reasons underlying the merits of the termination and is immaterial to
the jurisdictional issue. See Kellum v. Veterans Administration, 2 M.S.P.R. 65,
67 (1980).
The Board has jurisdiction over the appellant’s VEOA claim, but he is not
entitled to corrective action.
¶7 The Board has found that if an appellant raises a veterans’ preference
violation claim as an affirmative defense in an appeal of an adverse action that is
not within the Board’s jurisdiction, the Board should consider the allegation as a
possible stand-alone VEOA appeal. Loggins v. U.S. Postal Service, 112 M.S.P.R.
471, ¶ 14 (2009). To establish the Board’s jurisdiction over a VEOA claim based
on an alleged violation of veterans’ preference rights, an appellant must show that
he exhausted his remedy with DOL and make a nonfrivolous allegation of the
following: (1) he is a preference eligible within the meaning of VEOA; (2) the
action at issue took place on or after the October 30, 1998 enactment date of
VEOA; and (3) the agency violated his rights under a statute or regulation
relating to veterans’ preference. Haasz v. Department of Veterans
5
Affairs, 108 M.S.P.R. 349, ¶ 6 (2008). The administrative judge found that the
Board lacked jurisdiction over the appellant’s VEOA claim because he had not
exhausted his remedy before DOL. ID at 16.
¶8 For the appellant to meet VEOA’s requirement that he exhaust his remedy
with DOL, he must establish the following: (1) he filed a complaint with the
Secretary of Labor; and (2) the Secretary of Labor was unable to resolve the
complaint within 60 days or has issued a written notification that the Secretary’s
efforts have not resulted in resolution of the complaint. Davis v. Department of
Defense, 105 M.S.P.R. 604, ¶ 7 (2007). The appellant filed his appeal without
first exhausting the DOL complaint process, IAF, Tab 1 at 5, and he did not
submit evidence to the administrative judge showing that he subsequently
exhausted his remedy with DOL. Thus, the administrative judge appropriately
determined that the Board lacked jurisdiction under VEOA. ID at 15-16. The
appellant has filed new evidence on review showing that he has exhausted the
DOL complaint process. PFR File, Tab 1, Exhibit 1. In opposing the appellant’s
petition for review, the agency argues that the new evidence was available prior
to the issuance of the initial decision. PFR File, Tab 3 at 5.
¶9 The record on jurisdiction closed on May 5, 2015. IAF, Tab 2 at 5. The
administrative judge informed the parties that no new evidence or argument
would be accepted after that date unless the party submitting it showed that it was
not available before the record closed or was in rebuttal to new evidence filed by
the opposing party. Id. at 5-6. The letter from DOL is dated May 22, 2015, and
was apparently received by the appellant on July 13, 2015. 2 PFR File, Tab 1 at 5.
The initial decision was issued on July 27, 2015. As the agency argues, pursuant
to 5 C.F.R. § 1201.59(c), the appellant could have filed this evidence prior to the
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The appellant asserts that his VEOA claim “ripened” on July 13, 2015. PFR File,
Tab 1 at 5. We will assume for the purposes of adjudicating this petition that the term
“ripened” refers to the date the appellant received written notification of the results of
the DOL investigation.
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issuance of the initial decision, but we will not exclude this material evidence
from the record on that basis.
¶10 The remaining requirements for establishing the Board’s jurisdiction under
VEOA also have been met. The appellant has made a nonfrivolous allegation that
he is a preference eligible within the meaning of VEOA. IAF, Tab 4 at 6, 16, 32.
The appellant alleges that the agency violated his right to veterans’ preference in
terminating his appointment during his probationary period. IAF, Tab 1 at 6. An
appellant need not state a claim upon which relief can be granted for the Board to
have jurisdiction over a VEOA claim. Haasz, 108 M.S.P.R. 349, ¶ 6. The Board
has held that an allegation in general terms that an appellant’s veterans’
preference rights were violated is sufficient to meet the nonfrivolous allegation
requirement. Id., ¶ 7.
¶11 Although the appellant prematurely filed his appeal prior to exhausting his
remedies before DOL, the Board’s practice is to adjudicate an appeal that was
premature when initially filed but becomes timely while pending. See Wooten v.
Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). Because the
appellant now has exhausted the DOL complaint process and he has met the other
jurisdictional requirements for a VEOA claim, we modify the initial decision to
find that the Board has jurisdiction over his VEOA claim. See id. Nevertheless,
the appellant is not entitled to corrective action under VEOA. An appeal that is
within the Board’s jurisdiction can be dismissed for failure to state a claim upon
which relief can be granted if the appellant cannot obtain relief before the Board
even if his allegations are accepted as true. Alford v. Department of
Defense, 113 M.S.P.R. 263, ¶ 11 (2010). Dismissal for failure to state a claim is
appropriate only if, taking the appellant’s allegations as true and drawing all
reasonable inferences in his favor, he cannot prevail as a matter of law. Id. The
appellant contends that the agency failed to provide him veterans’ preference in
deciding to terminate his appointment during his probationary period. IAF, Tab 1
at 6. The appellant has not identified any statute or regulation providing
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veterans’ preference when terminating an appointment during a probationary
period. We also are unaware of any statute or regulation providing veterans’
preference under the facts presented here. Thus, we find that the appellant’s
claim is not one on which corrective action under VEOA can be granted, and we
dismiss the VEOA claim, without the requested hearing, based on a failure to
state a claim. See Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 8
(2007) (finding that the Board has the authority to decide a VEOA appeal on the
merits, without a hearing, where there is no genuine dispute of material fact and
one party must prevail as a matter of law).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this final order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
U.S. 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 U.S. 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 U.S. Code, at our
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website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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.
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 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.