The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA JOHNSTON, DOCKET NUMBER
Appellant, DA-0432-16-0022-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donna Johnston, Saginaw, Texas, pro se.
Bob D. Brown, Esquire, Jacksonville, Florida, for the agency.
Steven P. Hester, Esquire, Pensacola, Florida, 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 termination 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or 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).
BACKGROUND
¶2 The agency terminated the appellant from her NF-04 Fitness Director
position with the Morale, Welfare, and Recreation (MWR) Department at Naval
Air Station (NAS), Fort Worth, Texas for unsatisfactory performance. Initial
Appeal File, Tab 1 at 17‑23. The appellant’s removal letter shows that MWR is a
nonappropriated fund (NAF) instrumentality, and the letter informed her that she
may either appeal her removal to the Executive Officer of NAS Fort Worth or
through the equal employment opportunity (EEO) process. Id. The appellant
subsequently filed this Board appeal, and the agency moved to dismiss it for lack
of jurisdiction, arguing that, because the appellant is an NAF employee, the
Board lacks jurisdiction over her termination. IAF, Tabs 1, 5. The appellant
responded in opposition, and the administrative judge issued a show cause order
in which he gave the appellant notice that the Board lacks jurisdiction over
adverse actions of NAF employees and ordered her to file evidence and argument
to show why the appeal should therefore not be dismissed. IAF, Tabs 6, 8. The
appellant responded that the constitutional protections of the Fifth Amendment to
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the U.S. Constitution provide her a right to file a Board appeal of her termination
and that the agency’s internal appeal policies fail to provide the protections
required by the due process clause of the Fifth Amendment. IAF, Tab 9.
¶3 As noted above, the administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to allege nonfrivolous facts that, if
true, would establish Board jurisdiction over her appeal. IAF, Tab 10, Initial
Decision (ID). In her petition for review, the appellant reiterates her contention
that the Board has jurisdiction over her appeal because 5 U.S.C. § 1204(a)(1)
gives the Board authority to adjudicate matters arising under title 5, title 38,
chapter 43, and “any other law, rule or regulation.” Petition for Review (PFR)
File, Tab 1 at 4. The agency responds in opposition, and the appellant replies.
PFR File, Tabs 3‑4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The record reflects that the appellant is an NAF employee. IAF, Tab 1
at 15-23. 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 Board has long held that
5 U.S.C. § 2105(c) precludes the Board from exercising jurisdiction over appeals
under chapter 75 of title 5 from NAF employees under 5 U.S.C. § 7513(d). E.g.,
Clark v. Army & Air Force Exchange Service, 57 M.S.P.R. 43, 44-45 (1993)
(finding that because NAF employees are excluded from the definition of
“employee” set forth in 5 U.S.C. § 2105(c), 5 U.S.C. § 7513(d) does not provide
them with a right to appeal adverse actions); Taylor v. Department of the Navy,
1 M.S.P.R. 591, 592-96 (1980). Although the Board may have jurisdiction over
the denial of veterans’ preference to an NAF employee under 5 U.S.C. § 3330a if
the NAF is integrated into the Department of Defense’s civilian personnel system,
see Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶¶ 15-18 (2012), the
appellant does not claim a denial of veterans’ preference, IAF, Tab 1 at 1.
4
¶5 Under 5 U.S.C. § 1204(a)(1), the Board shall “hear, adjudicate, or provide
for the hearing or adjudication, of all matters within the jurisdiction of the Board
under this title, chapter 43 of title 38, or any other law, rule, or regulation . . . .”
In her petition for review, the appellant interprets the above statutory provision to
describe three different types of cases under the Board’s jurisdiction. PFR File,
Tab 1 at 4. She correctly describes the first as encompassing all matters within
the jurisdiction of the Board under title 5 of the U.S. Code. Id. However, she
leaves out the crucial clause “all matters within the jurisdiction of the Board”
when interpreting the other types of cases identified in the cited statutory
sentence, i.e., matters arising under chapter 43 of title 38, and matters arising
under any other law, rule, or regulation. Id.
¶6 Contrary to the appellant’s interpretation, 5 U.S.C. § 1204(a)(1) is not in
and of itself a grant of jurisdiction, but instead merely empowers the Board to
hear and adjudicate those matters that are specifically placed within its
jurisdiction by other authorities, i.e., title 5, chapter 43 of title 38, or any other
law, rule, or regulation. The Board’s subject matter jurisdiction is therefore
limited and its “power to adjudicate an action is restricted to matters where its
jurisdiction is specifically provided for by law, rule, or regulation.” King v. Reid,
59 F.3d 1215, 1217 (Fed. Cir. 1995). The appellant has failed to identify the law,
rule, or regulation which specifically provides the Board with the authority to
adjudicate her appeal. Without an otherwise appealable action, the Board is
without authority to address the appellant’s Fifth Amendment claim. E.g.,
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,
871‑73 (D.C. Cir. 1982).
¶7 In sum, the record evidence and the applicable law support the
administrative judge’s findings that the appellant failed to make a nonfrivolous
allegation of jurisdiction over her appeal. We therefore affirm the
initial decision.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
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
2
In the initial decision, the administrative judge provided the appellant with mixed-case
appeal rights. Based on the disposition of this case, such review rights are not
appropriate. Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22
(2015). The proper appeal rights are provided here.
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.