Samuel Trujillo v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SAMUEL TRUJILLO, DOCKET NUMBER

Appellant, DC-3443-22-0374-I-1

v.

DEPARTMENT OF THE ARMY, DATE: April 3, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Samuel Trujillo , APO, APO/FPO Europe, pro se.

Maite S. Hiatt and Sarah Dawn Dobbs , APO, APO/FPO Europe, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

which dismissed his appeal of his alleged involuntary placement in sick leave and

leave without pay (LWOP) status for lack of jurisdiction. For the reasons

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

initial decision, and REMAND the case to the Washington Regional Office for

further adjudication in accordance with this Remand Order.

The appellant, a preference eligible, is appointed to a competitive-service

position as a GS-6 Physical Scientist. Initial Appeal File (IAF), Tab 1 at 1. The

appellant filed this appeal, in which he alleged that the agency committed a

prohibited personnel practice by involuntarily placing him in sick leave and

LWOP status. IAF, Tab 1 at 3.

The administrative judge issued an order to show cause notifying the

appellant of his burden of proof to establish the Board’s adverse action

jurisdiction over his appeal, including that a “suspension of greater than 14 days”

is appealable. IAF, Tab 3 at 2. She also explained that the Board lacks

jurisdiction over “leave related complaints” or prohibited personnel practices

unless raised alongside an otherwise appealable matter. Id. Neither the appellant

nor the agency responded to the order. Without holding the appellant’s requested

hearing, the administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) at 1, 4. She reasoned

that the appellant failed to nonfrivolously allege he suffered an appealable action

based on the charge of sick leave and LWOP. ID at 4.

The appellant has filed a petition for review of the initial decision, and the

agency has responded. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We remand for further proceedings because the appellant did not receive explicit

notice of what is required to establish Board jurisdiction based on his allegations.

We find that the instant appeal needs to be remanded for further

proceedings under 5 U.S.C. § 7701, because it appears that the appellant may be

attempting to raise an involuntary suspension claim. Moreover, because he is

preference eligible, he may have a claim under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (codified as amended at

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38 U.S.C. §§ 4301-4335) (USERRA) 2 or the Veterans Employment Opportunity

Act (VEOA).

An appellant must receive explicit information on what is required to

establish Board jurisdiction. Burgess v. Merit Systems Protection Board,

758 F.2d 641, 643-44 (Fed. Cir. 1985); Tedesco v. Department of the Air Force,

90 M.S.P.R. 367, ¶ 7 (2001) (remanding an appeal due to the administrative

judge’s failure to advise the appellant what was required to establish Board

jurisdiction over a constructive suspension appeal), aff’d per curiam, 99 F. App’x

897 (Fed. Cir. 2004) (Table). The administrative judge’s orders and the initial

decision did not provide the appellant with notice of the jurisdictional

requirements for an involuntary suspension. IAF, Tabs 2, 3; ID at 1-4.

Moreover, the agency did not submit a response containing the relevant notice.

See Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009) (stating that an

administrative judge’s failure to provide an appellant with proper Burgess notice

can be cured if the agency’s pleadings or the initial decision contain the notice

that was otherwise lacking). Although the pro se appellant’s appeal form does

not specifically allege that he was subject to an involuntary suspension, the

appellant alleged that the agency improperly placed him in sick leave and LWOP

status for an unspecified period of time without his consent. IAF, Tab 1 at 3.

The appellant needs to be advised that an employee’s absence for more than

14 days that results in a loss of pay may be a constructive suspension appealable

under 5 U.S.C. §§ 7512(2) and 7513(d). To establish Board jurisdiction over an

involuntary suspension, an appellant must prove by preponderant evidence that

(1) he lacked a meaningful choice in his absence; and (2) it was the agency’s

wrongful actions that deprived him of that choice. Bean v. U.S. Postal Service,

120 M.S.P.R. 397, ¶ 8 (2013). Because the appellant was not so informed, it is

2

The Board’s jurisdiction over a USERRA claim is not dependent on an appellant invoking

USERRA. Yates v. Merit Systems Protection Board , 145 F.3d 1480, 1485 (Fed. Cir. 1998).

USERRA claims are broadly and liberally construed. Tindall v. Department of the Army,

84 M.S.P.R. 230, ¶¶ 6-7 (1999).

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necessary to remand this appeal to the regional office to provide him with an

adequate opportunity to establish jurisdiction. Tedesco, 90 M.S.P.R. 367, ¶ 7.

Lastly, although the appellant is preference eligible, neither the

administrative judge’s orders nor her initial decision provided the appellant with

notice on the jurisdictional requirements of a USERRA or VEOA claim. IAF,

Tabs 2, 3; ID at 1-4. Therefore, on remand the appellant should also be advised

that to establish Board jurisdiction over a USERRA discrimination claim under

38 U.S.C. § 4311(a), he must nonfrivolously allege that: (1) he performed duty or

has an obligation to perform duty in a uniformed service of the United States; (2)

the agency denied him initial employment, reemployment, retention, promotion,

or any benefit of employment; and (3) the performance of duty or obligation to

perform duty in the uniformed service was a substantial or motivating factor in

the denial. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11

(2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320

(Fed. Cir. 2017); see Bryant, 878 F.3d at 1325-26 (articulating the “substantial or

motivating factor” standard) (citation omitted). Furthermore, to establish Board

jurisdiction over a veterans’ preference VEOA appeal brought pursuant to

5 U.S.C. § 3330a, an appellant must: (1) show that he exhausted his remedy with

the Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) he

is a preference eligible within the meaning of VEOA, (ii) the action at issue took

place on or after the October 30, 1998 enactment date of VEOA, and (iii) the

agency violated his rights under a statute or regulation relating to veterans’

preference. 5 U.S.C. § 3330a(a); Lazaro v. Department of Veterans Affairs,

666 F.3d 1316, 1319 (Fed. Cir. 2012); Haasz v. Department of Veterans Affairs,

108 M.S.P.R. 349, ¶ 6 (2008). 3 An appellant need not state a claim upon which

3

An appellant also may establish Board jurisdiction over a “right to compete” VEOA

appeal brought under 5 U.S.C. § 3330a(a)(1)(B). To establish jurisdiction over such a

claim, he must: (1) show that he exhausted his remedy with DOL; and (2) make

nonfrivolous allegations that (i) he is a preference eligible or veteran within the

meaning of 5 U.S.C. § 3304(f)(1), (ii) the action at issue took place on or after the

enactment date of the Veterans’ Benefits Improvement Act of 2004, and (iii) the

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relief can be granted for the Board to have jurisdiction over a VEOA claim.

Haasz, 108 M.S.P.R. 349, ¶ 6.

ORDER

For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

agency, in violation of 5 U.S.C. § 3304(f)(1), denied him the opportunity to compete

under merit promotion procedures for a vacant position for which the agency accepted

applications from individuals outside its own workforce. Becker v. Department of

Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010).