The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELICIA N. JONES, DOCKET NUMBER
Appellant, DE-3443-16-0099-I-1
v.
DEPARTMENT OF VETERANS DATE: June 20, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Felicia N. Jones, Houston, Texas, pro se.
Letha Miller, Denver, Colorado, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On September 30, 2015, the agency denied the appellant’s claim for
disability compensation and related compensation benefits because the nonactive
duty service listed in her application—her participation in an Army Junior
Reserve Officer Training Corps (JROTC) program in high school—did not give
her “the legally required Veteran status for eligibility for [Department of
Veterans Affairs (VA)] benefits.” Initial Appeal File (IAF), Tab 2 at 11. In the
denial decision, the agency informed the appellant of the process for filing a
Notice of Disagreement with the agency’s decision and for obtaining further
review by the Board of Veterans’ Appeals. Id. at 13.
¶3 The appellant, however, filed an appeal with the Merit Systems Protection
Board (the Board) indicating that she had an JROTC appointment and that the
agency denied her benefits, on or about September 30, 2015, based on her injury
“in active service.” Id. at 2-3. The appellant indicated on her appeal form that
she was an annuitant under an unidentified retirement system, not an agency
employee. Id. at 5. The appellant also indicated that she filed a grievance with
the Department of the Army on October 28, 2015, that she filed a complaint with
the Office of Special Counsel (OSC), and that OSC had ended its investigation on
October 22, 2015. Id. at 4.
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¶4 The administrative judge informed the appellant that the Board might not
have jurisdiction over her appeal challenging her VA disability rating. IAF,
Tab 3 at 3. The administrative judge also informed the appellant of the criteria
for establishing jurisdiction over her appeal under the Whistleblower Protection
Act (WPA), the Veterans Employment Opportunities Act, and the Uniformed
Services Employment and Reemployment Rights Act. Id. at 3-4. The
administrative judge ordered the appellant to file evidence and argument to prove
that the action she raised on appeal was within the Board’s jurisdiction. Id. at 4.
¶5 The agency responded by filing a motion to dismiss the appeal for lack of
jurisdiction. IAF, Tab 5. In the motion, the agency provided an exhaustive list of
appealable actions over which the Board has jurisdiction. Id. at 5-6. The agency
also stated that, although the appellant would be entitled to a hearing on the
jurisdictional issue if she made a nonfrivolous allegation of jurisdiction, the
appellant’s vague claim on appeal did not fall within the Board’s purview.
Id. at 7.
¶6 The appellant opposed the agency’s motion, arguing that the Board has
jurisdiction over her appeal because she engaged in whistleblowing activity that
contributed “to the personnel action(s).” IAF, Tab 6 at 3. The appellant,
however, offered no details about her alleged whistleblowing activity or the
alleged personnel actions. Based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID).
¶7 In the initial decision, the administrative judge found that the appellant did
not allege that she was an employee in, or applicant for employment with, the
agency. ID at 4; see 5 U.S.C. § 2302(a)(2). The administrative judge further
found that the action challenged by the appellant on appeal, the denial of
veterans’ benefits for what she considered prior military service, was not a
“personnel action” as defined in 5 U.S.C. § 2302(a)(2) for purposes of the WPA.
ID at 4. The appellant filed a petition for review, and the agency responded in
opposition to her petition. Petition for Review (PFR) File, Tabs 1, 3.
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¶8 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 bears the
burden of demonstrating by preponderant evidence that the Board has jurisdiction
over her appeal. See 5 C.F.R. § 1201.56(a)(2)(i). The administrative judge
found, and we agree, that the appellant failed to allege a basis for the Board to
exercise jurisdiction over her appeal.
¶9 The appellant raises several arguments for the first time on review, none of
which show that the administrative judge erred in dismissing her appeal for lack
of jurisdiction. For example, although the appellant argues that “an employee
‘may submit an appeal to the [Board] . . . from any action that was appealable to
the Board under any law, rule, or regulation,’” and that her constitutional rights
were violated, she fails to allege any facts indicating that she was subjected to an
action appealable to the Board. PFR File, Tab 1 at 7, 9. The appellant also states
that she has new and material evidence concerning her status as a
“non-probational/employee,” but she does not provide this evidence or describe it
in her submission. Id. at 6. Because the appellant’s arguments on review fail to
raise a nonfrivolous allegation of jurisdiction over this appeal, we deny her
petition for review. 2
2
We have considered the remaining arguments raised by the appellant on review, and
we discern no basis to disturb the initial decision. For example, the appellant devotes a
section of her petition for review to the Board’s original jurisdiction over
“[d]isciplinary actions brought by Special Counsel alleging violation of the Hatch Act,”
but she does not explain why the Board’s original jurisdiction applies in her case.
PFR File, Tab 1 at 6. On review, the appellant also makes a conclusory statement that
the Board has jurisdiction over her appeal under the Aviation and Transportation Act
and the Homeland Security Act of 2002, but neither Act has any apparent relevance in
this appeal. Id. at 6, 9.
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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:
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
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.