Brandy Branstetter v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRANDY BRANSTETTER, DOCKET NUMBER

Appellant, DE-315H-16-0125-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: April 27, 2022

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Michael W. Macomber, Esquire, Albany, New York, for the appellant.

Gavin M. Frost, Esquire, and Jennifer Koduru, Washington, D.C., for the

agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his probationary termination appeal for lack of jurisdiction. For the

reasons discussed below, we GRANT the appellant’s petition for review and

REMAND the case to the field office for further adjudication in accordance with

this Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 On November 19, 2015, the agency separated the appellant from the

position of Utility Systems Operator (USO) during his probationary period.

Initial Appeal File (IAF), Tab 5 at 23, 48-49. The appellant’s Federal service

preceding his competitive-service appointment as a USO consisted of seven

temporary appointments. Id. at 49-50, 65-71. As relevant here, the last six were

alternating appointments to the position of Maintenance Worker, served from

spring to fall, and Laborer, served from fall to spring. Id. at 65-71. The final

temporary Laborer appointment was from October 19 to November 29, 2014.

Id. at 49-50, 63. On November 30, 2014, he was appointed to the position of

USO, without a break in service, subject to 1-year probation. Id. at 49-50.

¶3 The appellant filed a pro se appeal to the Board challenging his separation.

IAF, Tabs 1, 9. The administrative judge informed him of his jurisdictional

burden and pointed out that he could show he was not a probationer if his Federal

service immediately preceding the USO appointment contained no more than one

break in service of 30 days or less, and was performed in the same agency and in

the same line of work. IAF, Tab 6 at 2-3. The appellant responded that he

satisfied the criteria. IAF, Tab 9. The agency replied by producing job

descriptions of Maintenance Worker, Laborer, and USO. IAF, Tab 10 at 6-13,

Tab 12 at 8-27.

¶4 The administrative judge found that the appellant’s prior Federal service

could not be tacked on to his probationary appointment because the USO and

Laborer positions were not in the same line of work. IAF, Tab 16, Initial

Decision (ID) at 5-6. She then found that he was a probationer who did not allege

that his termination was based on marital status or partisan political reasons, and

dismissed his appeal for lack of jurisdiction, without holding his requested

hearing. ID at 7-8.

¶5 The appellant has timely petitioned for review. Petition for Review (PFR)

File, Tab 3. He argues that the administrative judge: (1) did not provide him

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with the guidance sufficient for a pro se litigant; and (2) failed to view his

allegations about the duties he performed during his prior Federal service in the

light most favorable to him. Id. at 5. The agency has responded to the petition

for review, and the appellant has replied. PFR File, Tabs 6-7.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge provided the appellant with guidance sufficient for a

pro se litigant to nonfrivolously plead Board jurisdiction.

¶6 An administrative judge is obligated to provide an appellant with explicit

information concerning what is required to establish jurisdiction over his appeal,

see Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985), and the Board has demonstrated heightened sensitivity to pro se appellants

when administrative judges have failed to detail jurisdictional burdens, see

Mesbah v. Department of Justice, 87 M.S.P.R. 491, ¶ 8 (2001). Below, the

administrative judge informed the appellant of the jurisdictional requirements

under 5 C.F.R. § 315.802(b). IAF, Tab 6 at 2-3. While she did not clarify that an

employee’s “line of work” is “determined by the employee’s actual duties and

responsibilities,” 5 C.F.R. § 315.802(b)(2), the appellant’s response to her

jurisdictional order indicated his awareness of that principle , IAF, Tab 9. Thus,

we find that he was not deprived of the guidance he needed.

The administrative judge erred in finding that the appellant failed to

nonfrivolously allege jurisdiction.

¶7 To appeal an adverse action, such as a removal, an individual appointed to

the competitive service generally is required to complete a 1-year probationary

period. 5 U.S.C. § 7511(a)(1)(A); see McCormick v. Department of the Air

Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002) (addressing the alternative

methods under section 7511(a)(1)(A) by which an appellant may prove that he is

a competitive-service “employee” who may appeal his removal). However, an

appellant who has not served a full year under his appointment can acquire appeal

rights by tacking his prior Federal service onto his probationary service, provided

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that his prior service was completed with no more than one break in service of

30 days or less, and was in the same agency and line of work. See 5 C.F.R.

§ 315.802(b). The positions are in the same line of work if they involve related

or comparable work that requires the same or similar skills . 2 Mathis v. U.S.

Postal Service, 865 F.2d 232, 234 (Fed. Cir. 1988) (interpreting the similar

statutory language in 5 U.S.C. 7511(a)(1)(B)); Sandoval v. Department of

Agriculture, 115 M.S.P.R. 71, ¶ 8, ¶ 11 n.2, ¶ 14 (2010) (explaining that the

interpretation of section 7511(a)(1)(B) in Mathis applies to tacking under

5 U.S.C. § 7511(a)(1)(A)).

¶8 Below, the appellant alleged that, during his prior Federal service, his

duties were similar to those of a USO, and he kept performing these duties

regardless of seasonal changes in his job title, which was altered merely to

accommodate the agency’s administrative needs. IAF, Tab 9; PFR File, Tab 7

at 6-8. The administrative judge did not address these allegations and found that

the appellant’s prior Federal service was not in the same line of work as his

probationary appointment because the USO and Laborer positions had different

job descriptions. ID at 5-6. In doing so, she erred. See Sosa v. Department of

Defense, 102 M.S.P.R. 252, ¶¶ 11‑13 (2006) (remanding an appeal that an

administrative judge dismissed for lack of jurisdiction without holding a hearing

in light of the differences in job descriptions, and pointing out that he was

required to address the appellant’s allegations about the nature and character of

the duties he actually performed); 5 C.F.R. § 315.802(b)(2) (indicating that

whether positions are in the same line of work is “determined by the employee’s

actual duties and responsibilities”).

¶9 The administrative judge also erred in finding that the appeal could be

dismissed for lack of jurisdiction because the agency met its burden by

2

In determining whether positions are in the same line of work , the Board also may

consider whether the positions are in the same competitive level for reduction -in-force

purposes. Pagan v. U.S. Postal Service, 111 M.S.P.R. 212, ¶ 6 (2009).

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preponderant evidence. ID at 6-7. The process of establishing Board jurisdiction

generally is a two-step inquiry. See Bledsoe v. Merit Systems Protection Board,

659 F.3d 1097, 1102 (Fed. Cir. 2011), modified by regulation on other grounds,

as recognized in Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016).

Initially, an appellant is obligated to raise nonfrivolous allegations of fact that, if

proven, could establish a prima facie case that the Board has jurisdiction over the

matter at issue. See Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9

(2007); 5 C.F.R. § 1201.4(s). If he raises nonfrivolous allegations, he is entitled

to a hearing at which he must prove jurisdiction by preponderant evidence. See

Bledsoe, 659 F.3d at 1102; O’Brien v. Department of Agriculture, 91 M.S.P.R.

139, ¶ 5 (2002). Therefore, the preponderant evidence test is inapplicable to the

initial stage of the jurisdictional inquiry in general and to an agency’s

submissions in particular. Moreover, an administrative judge may not deem the

agency’s evidence dispositive if it merely contradicts the appellant’s otherwise

adequate prima facie showing of jurisdiction. See Ferdon v. U.S. Postal Service,

60 M.S.P.R. 325, 329 (1994). Accordingly, a remand is necessary. On remand,

the administrative judge should afford the appellant his requested jurisdictional

hearing and determine whether he meets the definition of employee under

section 7511(a)(1)(A).

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ORDER

¶10 For the reasons discussed above, we remand this case to the field office for

further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.