The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSIE NICHOLAS JEUNE, DOCKET NUMBER
Appellant, PH-315H-15-0224-B-1
v.
DEPARTMENT OF VETERANS DATE: March 24, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nancy Gail Matza, Esquire, Somerville, Massachusetts, for the appellant.
Jonathan Smith, 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 remand 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed an appeal with the Board challenging the agency’s
action terminating her from the position of Supervisory Financial Management
Specialist on February 4, 2015, during her probationary period at a Veterans
Hospital. Jeune v. Department of Veterans Affairs, MSPB Docket No. PH-315H-
15-0224-I-1, Initial Appeal File (IAF), Tab 1. The administrative judge informed
the appellant of the criteria for establishing jurisdiction based on the claims she
raised on appeal and ordered her to submit evidence and argument to establish
why the appeal should not be dismissed for lack of jurisdiction. IAF, Tab 2 at 4.
After the appellant failed to respond to the order, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7,
Initial Decision (ID).
¶3 In reaching his decision, the administrative judge found that the appellant
did not meet the legal definition of an “employee” who would be allowed to
appeal her termination as an adverse action. ID at 4. The administrative judge
also found it undisputed that the agency appointed the appellant to a
competitive‑service position, effective February 9, 2014; that her position was
subject to a 1-year probationary period; and that the agency terminated her on
February 4, 2015, for post-appointment reasons. ID at 3. The administrative
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judge further found that the appellant did not allege that her termination was
based on marital status discrimination or for partisan political reasons, which are
the only bases for finding Board jurisdiction over an appeal of a probationer’s
termination for post-appointment reasons. Id.
¶4 The appellant filed a petition for review of the initial decision arguing that
the agency ignored her veterans’ preference, and that the agency never told her
“what level of conduct was unacceptable” during her probationary period. Jeune
v. Department of Veterans Affairs, MSPB Docket No. PH-315H-15-0224-I-1,
Petition for Review (PFR) File, Tab 1 at 12. The appellant also claimed harmful
procedural error and alleged whistleblower retaliation and violations under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) and the Veterans Employment Opportunities Act of 1998 (VEOA).
Id. at 4.
¶5 The Board remanded the appeal to the regional office for adjudication of the
jurisdictional issues applicable to an individual right of appeal (IRA) appeal and
claims under USERRA and VEOA. Jeune v. Department of Veterans Affairs,
MSPB Docket No. PH-315H-15-0224-I-1, Remand Order, ¶¶ 8-9 (Sept. 11, 2015)
(Remand Order). The Board directed the administrative judge on remand to
inform the appellant of what she was required to show to establish Board
jurisdiction over an IRA appeal and her additional claims under USERRA and
VEOA. Id., ¶¶ 8-9. The Board also directed the administrative judge to allow the
parties an opportunity to submit evidence and argument on these issues and to
adjudicate the merits if jurisdiction was established. Id.
¶6 On remand, the administrative judge held a conference call with the parties
to explain the jurisdictional burdens. Remand File (RF), Tab 3. The
administrative judge also issued an order on September 24, 2015, memorializing
the conference call and providing the parties with an opportunity to submit any
exceptions or objections. Id. Thereafter, on October 27, 2015, the administrative
judge ordered the appellant to show cause why her appeal should not be dismissed
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for lack of Board jurisdiction. RF, Tab 4. After the appellant failed to respond to
the administrative judge’s orders, he dismissed the appeal for lack of jurisdiction
finding that the appellant failed to prove jurisdiction over her case as an IRA
appeal or under USERRA or VEOA. RF, Tab 5, Remand Initial Decision (RID)
at 2, 4-6. In reaching his decision, the administrative judge found that the
appellant did not allege that she exhausted her administrative remedies before the
Office of Special Counsel regarding her whistleblower retaliation allegation, and
she did not assert that she first filed a complaint with the Department of Labor
regarding a VEOA claim. RID at 4. The administrative judge also found that the
appellant failed to allege specifically that the agency discriminated against her
because of her military service. RID at 5. In addition, the administrative judge
noted that the Board did not disturb his prior findings that the agency terminated
the appellant during her probationary period; that she did not allege that her
termination was based on marital status discrimination or for partisan political
reasons; and that she did not meet the definition of an “employee” entitling her to
bring an adverse action appeal. RID at 2.
¶7 The appellant filed a petition for review alleging that the agency
miscategorized her as a probationer and that the Board should review her appeal
as the termination of a permanent nonprobationary employee. Remand Petition
for Review (RPFR), Tab 1, Tab 3 at 4. In support of her petition, the appellant
submitted: (1) a job posting that closed on November 1, 2013, advertising her
former position; and (2) part of the Standard Form 50 (SF-50) documenting her
February 9, 2014 career-conditional appointment, which is part of the record on
appeal. RPFR File, Tab 3 at 2-3; IAF, Tab 6 at 8-9. The appellant asserts that
this evidence previously was unavailable because the agency did not respond to
her subpoena and she “had to review all documents from various resources before
[she] could find the information that [she] requested from the VA Medical Center,
thus making it difficult to provide them earlier.” RPFR File, Tab 3 at 4. The
appellant also alleges whistleblower retaliation and race and gender
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discrimination. Id. The agency responded in opposition to her petition. RPFR
File, Tab 4.
¶8 The appellant, who was represented by an attorney in her proceedings
before the Board, does not explain her failure to respond to the show cause order
on jurisdiction prior to the filing deadline of November 6, 2015, or her failure to
request an extension of time to respond. Moreover, the appellant offers no
evidence or argument on review showing that the Board has jurisdiction over her
allegations as an IRA appeal or under VEOA or USERRA. Although the
appellant argues for the first time on review that she was not serving a
probationary period when the agency terminated her, this issue is not properly
before the Board. RPFR File, Tab 3 at 4. In the remand order, the Board found
that the appellant did not dispute that she was terminated during her probationary
period for post-appointment reasons or allege that the agency terminated her for
partisan political reasons or due to marital status discrimination, and that she did
not qualify as an “employee” with appeal rights under chapter 75. RID at 2;
Remand Order, ¶ 7. Regardless, with respect to the jurisdictional issue, we find
that the evidence submitted by the appellant on review is neither new nor of
sufficient weight to warrant an outcome different from that of the remand initial
decision. 2 See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
We therefore deny her petition for review.
2
On review, the appellant submitted an incomplete copy of the SF-50 documenting her
appointment. RPFR File, Tab 3 at 2. The omitted page is part of the record on appeal
and states that her career-conditional appointment to the position of Supervisory
Financial Management Specialist was subject to the completion of a 1-year initial
probationary/trial period beginning on February 9, 2014. IAF, Tab 6 at 8. The
documentary evidence reflects that the agency terminated the appellant, effective
February 4, 2015, before the expiration of her probationary period. IAF, Tab 1 at 8.
The appellant offered no contrary evidence on review.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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:
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 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
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
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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.