The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBRA LYNN GRIGIONI, DOCKET NUMBER
Appellant, PH-315H-16-0315-I-1
v.
DEPARTMENT OF VETERANS DATE: April 15, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra Lynn Grigioni, West Deptford, New Jersey, pro se.
Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the termination of her appointment
in the excepted service. 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 interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 p etitioner 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 appellant was appointed to the Nuclear Medicine Technologist position
in the excepted service on February 7, 2016. Initial Appeal File (IAF), Tab 1
at 1, Tab 4 at 14. Her appointment required completing a 1‑year trial period.
IAF, Tab 4 at 14. Approximately 11 weeks after the effective date of her
appointment, the agency issued a notice dated April 21, 2016, informing her of its
decision to terminate her employment on April 22, 2016. Id. at 35-37. The
notice also set forth information regarding the filing of an appeal with the Board.
Id. The appellant filed a Board appeal, which challenged the propriety and the
procedural processing of her termination. IAF, Tab 1. She requested a hearing.
Id. at 2.
¶3 The agency argued that the Board lacks jurisdiction over the appeal because
the appellant was not an “employee” as defined at 5 U.S.C. § 7511(a)(1)(C) with
adverse action appeal rights under 5 U.S.C. chapter 75, and she failed to make an
allegation of one of the limited regulatory grounds for appeal set forth in 5 C.F.R.
§ 315.806. IAF, Tab 4 at 7-8. The administrative judge issued an order directing
3
the appellant to address the jurisdictional issues, but she did not respond. IAF,
Tab 2.
¶4 In his initial decision, the administrative judge acknowledged that, in
apprising the appellant of her jurisdictional burden, he had mistakenly informed
her of how to establish Board jurisdiction over a probationary termination of a
competitive-service appointment, although her appointment was in the excepted
service. IAF, Tab 5, Initial Decision (ID) at 2 & n.1. He explained how the
appellant could establish that she was an “employee” in the excepted service as
set forth in 5 U.S.C. § 7511(a)(1). ID at 3. He found that she lacked veterans’
preference rights and had less than 1 year of Federal service at the time of her
termination. ID at 4. Thus, he concluded that she did not meet the statutory
definition of an employee under 5 U.S.C. § 7511(a)(1)(B)-(C) and, based on the
written record, dismissed the appeal for lack of jurisdiction. Id.
¶5 The appellant has filed a petition for review, and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant does not dispute the administrative judge’s finding
that she lacks veterans’ preference. PFR File, Tab 1. Thus, to qualify as an
“employee” with appeal rights under 5 U.S.C. chapter 75, the appellant, as an
individual in the excepted service, must show that she either is not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service, or has completed 2 years of current continuous service in
the same or similar position in an Executive agency under other than a temporary
appointment limited to 2 years or less. Ramirez-Evans v. Department of Veterans
Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). The appellant bears the burden of
establishing jurisdiction by a preponderance of the evidence in a termination
4
appeal. 2 Swango v. Department of Veterans Affairs, 59 M.S.P.R. 235, 241 (1993);
5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7 The appellant makes no claim that she was serving a tri al or probationary
period under an initial appointment pending conversion to the competitive
service. PFR File, Tab 1. Rather, she argues that she qualifies as an employee
with a right to a Board appeal because she was a “full[-]time employee” whose
appointment afforded the benefits of a Thrift Savings Plan (TSP) and leave
accrual. Id. at 3. In support of her argument, she submits a copy of her TSP
Election Form dated February 8, 2016, and a copy of her Earning and Leave
Statement for the pay period ending February 20, 2016. Id. at 5-6. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). However, the issue of jurisdiction is
always before the Board and may be raised by any party or sua sponte by the
Board at any time during a Board proceeding. See Lovoy v. Department of Health
& Human Services, 94 M.S.P.R. 571, ¶ 30 (2003). Here, the two documents
submitted on review predate the close of the record below, and the appellant has
not shown that they previously were unavailable. Furthermore, neither document
shows that she completed more than 11 weeks of Federal service, as found in the
initial decision. ID at 4. Thus, we find that this evidence and argument does not
provide a basis for disturbing the initial decision.
2
An appellant must be given explicit information on how to establish jurisdiction over
a Board appeal. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44
(Fed. Cir. 1985). As noted above, the administrative judge’s order on jurisdiction did
not inform the appellant of how to establish jurisdiction over the termination of an
excepted-service appointment, but the initial decision provided the information. Thus,
the appellant had an opportunity to meet her jurisdictional burden in her petition for
review. See Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007).
5
¶8 The appellant also asserts that the Board has jurisdiction over her appeal
because the termination notice states that she is entitled to such an appeal.
PFR File, Tab 1 at 3. She provides a copy of the termination notice, which sets
forth that she is entitled to appeal to the Board if she alleges discrimination due to
marital status or partisan political reasons or her removal was not effected in
accordance with the procedural requirements of 5 C.F.R. § 315.805. Id. at 4. She
argues that she did not receive the notice, which was dated April 21, 2016, until
the date that the action became effective on April 22, 2 016. Id. at 3. To the
extent that the appellant argues that she has a regulatory right of appeal to the
Board under 5 C.F.R. § 315.806 of a termination that was not effected in
accordance with the procedural requirements of 5 C.F.R. § 315.805, we find that
this argument is unavailing. It is undisputed that she was appointed to a position
in the excepted service. IAF, Tab 1, Tab 4 at 7, 14; PFR File, Tab 1. The
regulatory appeal rights set forth in 5 C.F.R. § 315.806 generally do not apply to
individuals in the excepted service. See Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 13 (2009).
¶9 The agency asserted below that it had appointed the appellant to a position
in the excepted service under the authority of 38 U.S.C. § 7401(3), even though
the Standard Form 50 documenting the appointment shows that she was appointed
under 38 U.S.C. § 7401(1). IAF, Tab 4 at 7, 14. This discrepancy has no effect
on the outcome of the jurisdictional issue. The Board has held that an individual
appointed under section 7401(3) has no regulatory right to a Board appeal of a
termination under 5 C.F.R. § 315.806, a provision that applies only to an
individual in the competitive service. Ramirez-Evans, 113 M.S.P.R. 297, ¶¶ 9‑10
& n.2. Similarly, an individual appointed to a position in the excepted service
under 38 U.S.C. § 7401(1) has no Board appeal right under 5 U.S.C. chapter 75 or
5 C.F.R. § 315.806. See Pichon v. Department of Veterans Affairs, 67 M.S.P.R.
325, 327 (1995) (finding that a nurse appointed under 38 U.S.C. § 7401(1) is
appointed without considering civil service requirements regarding qualifications
6
and is excluded from the competitive service). Furthermore, an agency’s
erroneous notice of appeal rights cannot expand the Board’s jurisdiction.
Barrand, 112 M.S.P.R. 210, ¶ 13.
¶10 Accordingly, we find that the appellant has provided no basis to disturb the
administrative judge’s initial decision, which dismissed her appeal for lack of
Board jurisdiction.
NOTICE OF APPEAL RIGHTS 3
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.
Court of Appeals for the Federal Circuit, which must be received by the court
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.
7
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 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.
(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
representative in this case, and your representative receives this decision before
8
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 respective
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 Employment
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
9
(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.
10
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.