finding that an appellant who makes a nonfrivolous allegation of Board jurisdiction is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence; if she fails to prove jurisdiction, the case is dismissed for lack of jurisdiction
How later courts described this case
- finding that an appellant who makes a nonfrivolous allegation of Board jurisdiction is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence; if she fails to prove jurisdiction, the case is dismissed for lack of jurisdiction
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONGHUI MARTIN, DOCKET NUMBER
Appellant, SF-0351-16-0620-I-1
v.
DEPARTMENT OF DEFENSE, DATE: July 19, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall, Charleston, South Carolina, for the appellant.
Douglas W. Frison, Esquire, APO, AP, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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 in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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 to clarify the administrative judge’s jurisdictional analysis , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a school nurse at Daegu High School (DHS) in the Korea
District of the agency’s Department of Defense Education Activity (DoDEA),
filed a board appeal alleging that the agency subjected her to a reduction-in-force
(RIF) action when it eliminated her half-time teaching position, reducing her to a
half-time school nurse. Initial Appeal File (IAF), Tabs 1, 9. In its response to
her appeal, the agency explained that the appellant occupied a mixed
teacher/specialist position at DHS and that, based on anticipated enrollment for
the following school year, its headquarters office eliminated the half-time English
as a Second Language (ESL) position at DHS that the appellant occupied the
previous school year. IAF, Tab 4 at 6-7. Consequently, the agency “excessed”
the appellant from that position in keeping with the procedures set forth in the
memorandum of understanding on that issue between DoDEA and the union. Id.
at 87-88, 104-05.
¶3 The administrative judge issued an order explaining the elements and
burdens of establishing jurisdiction over an appeal of a RIF action. IAF, Tab 8.
3
In her response, the appellant contended that the agency excessed her even though
it allowed less tenured and qualified teachers to remain in their full -time
positions. IAF, Tab 9 at 4. She also claimed that the agency used the RIF as a
“disguised, procedurally defective adverse action” intended to demote her to a
part-time position for personal reasons. Id. at 4-5. In reply, the agency argued,
among other things, that the appellant failed to produce any evidence that it
conducted a RIF that affected her. IAF, Tab 11.
¶4 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant failed to show that any of the
conditions necessary to establish jurisdiction existed in this matter. IAF, Tab 14,
Initial Decision (ID). In her petition for review, the appellant reiterates the
arguments she made below, i.e., that the agency used a bogus RIF to demote her
for personal reasons. Petition for Review (PFR) File, Tab 3. The agency
responds in opposition. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To be entitled to a jurisdictional hearing over a RIF claim, the appellant
must make a nonfrivolous allegation that she was subjected to an appealable RIF
action in the form of a demotion, separation, or furlough for more than 30 days.
See Harrell v. U.S. Postal Service, 112 M.S.P.R. 492, ¶ 11 (2009); Wolf v.
Department of Veterans Affairs, 87 M.S.P.R. 33, ¶ 7 (2000); 5 C.F.R. § 351.901.
Here, the appellant claims that she was subjected to an appealable RIF action
when the agency demoted her from a full-time to a part-time position. IAF,
Tabs 1, 9; PFR File, Tab 3. For the following reasons, we agree with the
administrative judge’s decision to dismiss the appeal for lack of jurisdiction.
The appellant failed to make a nonfrivolous allegation that the agency subjected
her to an appealable RIF action in the form of a demotion.
¶6 A demotion is defined in pertinent part as a change of an employee, while
serving continuously within the same agency, to a lower grade or to a position
4
with a lower rate of pay. 5 C.F.R. § 210.102(b)(4). Although the appellant may
have lost half of her hours as a consequence of excessing the ESL teacher
position that she held, she has not alleged that the agency reduced her rate of pay
or assigned her to a lower-graded position. Therefore, she has failed to
nonfrivolously allege that she was demoted. See Wolf, 87 M.S.P.R. 33, ¶¶ 8-10
(finding that a “staff adjustment” resulting in a reduction of hours but not in a
reduction of the rate of pay or grade was not a demotion). Accordingly, we find
that the appellant has failed to nonfrivolously allege that she was subjected to an
appealable RIF action. See id., ¶ 11. 2
¶7 In the initial decision, the administrative judge ultimately found that the
appellant had “not shown that any of the conditions necessary to establish
jurisdiction in such a case existed here.” ID at 5. However, the appellant at this
stage was required only to make a nonfrivolous allegation of jurisdiction to
entitle her to a jurisdictional hearing, at which time she then must establish
jurisdiction by preponderant evidence. See Garcia v. Department of Homeland
Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (finding that an appellant who
makes a nonfrivolous allegation of Board jurisdiction is entitled to a hearing at
which she must prove jurisdiction by a preponderance of the evidence; if she fails
to prove jurisdiction, the case is dismissed for lack of jurisdiction). Therefore,
we modify the initial decision to dismiss the appeal based on the appellant’s
failure to nonfrivolously allege jurisdiction. E.g., Harrell, 112 M.S.P.R. 492,
¶ 11.
¶8 Finally, the appellant raised below and on review claims that the agency
demoted her based on discrimination and retaliation. IAF, Tabs 1, 9; PFR File,
Tab 3. Absent an otherwise appealable action, however, the Board lacks
2
To the extent that the appellant is arguing that the Board has jurisdiction because the
agency reassigned her, an employee reassigned during a RIF may appeal to the Board
only if the reassignment was a RIF demotion, i.e., a reassignment to a position carrying
a lower grade or rate of pay. Myers v. Department of the Army, 87 M.S.P.R. 77, ¶ 5
(2000).
5
jurisdiction over the appellant’s discrimination and retaliation claims. E.g.,
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (observing that
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).
¶9 Accordingly, we deny the appellant’s petition for review.
NOTICE OF APPEAL RIGHTS 3
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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 vis it 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, and 11.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.