Opinion

Brenda Woods v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRENDA LYNN WOODS, DOCKET NUMBER

Appellant, AT-0752-18-0697-I-1

DEPARTMENT OF VETERANS DATE: April 19, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brenda Lynn Woods , Memphis, Tennessee, pro se.

Lois F. Prince and Bradley Flippin , Nashville, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

Effective April 15, 2018, the agency appointed the appellant under

38 U.S.C. § 7401(3) to an excepted service appointment subject to the successful

completion of a one-year probationary period. Initial Appeal File (IAF), Tab 1

at 10. According to the Standard Form 50 documenting her appointment, the

appellant is preference eligible. Id. Effective August 6, 2018, the agency

terminated her for “unacceptable conduct.” Id. at 7-8.

The appellant filed an appeal and the administrative judge issued Burgess 2

notice appropriate to a preference-eligible probationer in the excepted service.

IAF, Tabs 1, 3. In response, the appellant asserted that the Board had jurisdiction

over her appeal because she alleged that the agency committed prohibited

personnel practices in violation of 5 U.S.C. § 2302(b)(5), (8), and (10). IAF,

Tab 7. In its response to the administrative judge’s jurisdictional notice, the

agency submitted evidence that the appellant resigned from her position on the

date her termination would have been effective. IAF, Tab 9 at 28-33.

An appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d

641, 643-44 (Fed. Cir. 1985).

The administrative judge issued a decision on the written record in which

he dismissed the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision

(ID) at 1, 4. The administrative judge found that the appellant failed to show that

she was an employee with appeal rights under 5 U.S.C. § 7511(a)(1)(B), and thus

had no right to appeal either a probationary termination or an involuntary

resignation. ID at 2-3. He also found that the appellant could not appeal her

separation as an individual right of action (IRA) appeal because she did not allege

that she exhausted her administrative remedies with the Office of Special Counsel

(OSC). ID at 4. Finally, he found that the Board lacked jurisdiction over the

appellant’s claims of prohibited personnel practices absent jurisdiction over the

underlying personnel action. ID at 3-4.

The appellant petitions for review of the initial decision. Petition for

Review (PFR) File, Tab 1. The agency responds in opposition to the appellant’s

petition for review and the appellant replies to the agency’s response. PFR File,

Tabs 3-4.

The basis for the appellant’s assertion that the agency terminated her

because of alleged whistleblowing is not entirely clear. In her pleadings below,

she states that the agency terminated her to prevent her from whistleblowing

rather than that it retaliated against her for protected disclosures she had already

made. IAF, Tab 7 at 6. The administrative judge did not issue any Burgess

notice appropriate to a whistleblowing claim, and the agency did not address IRA

jurisdiction in any of its pleadings. However, the Board has held that, when the

initial decision itself provides proper Burgess notice such that the appellant has

an opportunity to establish jurisdiction in her petition for review, the Board’s

obligation to provide notice is satisfied. Caracciolo v. Department of the

Treasury, 105 M.S.P.R. 663, ¶ 11 (2007), overruled on other grounds by Brookins

v. Department of the Interior, 2023 MSPB 3, ¶ 8. To the extent that the appellant

raised a colorable IRA claim, the administrative judge’s finding in the initial

decision that she was required to establish exhaustion and did not do so, ID at 4,

was sufficient to put the appellant on notice that she must submit evidence of

exhaustion with her petition for review in order to show jurisdiction over her

purported IRA claim.

On review, the appellant asserts that she filed a complaint with OSC and

that OSC informed her that it would be unable to take any action on her complaint

for three to six months. PFR File, Tab 1 at 4. The appellant does not state when

she filed an OSC complaint, she does not submit a copy of any OSC complaint or

any correspondence from OSC, and she does not specify whether her complaint

was of whistleblower reprisal (which is a prerequisite for an IRA appeal) or of

prohibited personnel practices (which requires an otherwise appealable action to

fall within the Board’s purview). Therefore, the appellant’s bare assertion that

she made an unspecified filing with OSC on an unspecified date does not

overcome the administrative judge’s finding that she failed to show by

preponderant evidence that she exhausted her administrative remedies.

As to her separation from service, the appellant was a preference-eligible

probationer in the excepted service, appointed under 38 U.S.C. § 7401(3).

The Office of Personnel Management’s regulations at 5 C.F.R. subpart 315 apply

only to competitive service appointments and to excepted service Veterans

Recruitment Appointments. They do not apply to the appellant. See Barrand v.

Department of Veterans Affairs, 112 M.S.P.R. 210, ¶ 13 (2009) (finding that

employees appointed under 38 U.S.C. § 7401(3) are in the excepted service and

are not entitled to competitive service protections). Therefore, the Board only

has jurisdiction over the appellant’s separation if she can show that she is an

“employee” under 5 U.S.C. § 7511(b)(1)(B). In other words, the appellant must

show by preponderant evidence that she has completed 1 year of current

continuous service in the same or similar positions in an Executive agency or in

the U.S. Postal Service or Postal Regulatory Commission. Allen v. Department of

the Navy, 102 M.S.P.R. 302, ¶ 7 (2006). “Current continuous service” means a

period of employment or service, either in the competitive or excepted service

that immediately precedes an adverse action, without a break in Federal civilian

employment of a work day. Maibaum v. Department of Veterans Affairs ,

116 M.S.P.R. 234, ¶ 14 (2011).

The administrative judge found that the appellant has some prior Federal

service, but that there is no evidence that this prior service immediately preceded

her appointment to the position from which she was terminated. ID at 3.

The appellant does not dispute the administrative judge’s finding on review and

we discern no contrary evidence in the record. We find that the administrative

judge correctly determined that the appellant failed to show that she is an

employee with appeal rights under 5 U.S.C. § 7511(a)(1)(B). Similarly, because

the appellant has not shown that the Board has jurisdiction over her appeal, the

administrative judge correctly found that the Board lacks jurisdiction to consider

her allegations of prohibited personnel practices. ID at 3-4; see Wren v.

Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d sub nom. Wren v. Merit

Systems Protection Board, 681 F.2d 867, 871-73 (D.C. Cir. 1982).

Finally, the appellant has filed a request for leave to file an additional

pleading on the basis that the agency committed a prohibited personnel practice

under 5 U.S.C. § 2302(b)(8) and failed to follow the procedures set forth in

5 C.F.R. § 315.805. PFR File, Tab 6. The Board lacks jurisdiction over the

appellant’s purported IRA claim for the reasons set forth above, and her assertion

that the agency violated 5 U.S.C. § 2302(b)(8) provides no basis to disturb the

administrative judge’s finding. Moreover, even assuming that the appellant’s

resignation was not effective and that she was terminated during her probationary

period, she was an excepted service employee and was not entitled to the

procedural protections of 5 C.F.R. § 315.805. Barrand, 112 M.S.P.R. 210, ¶ 13.

Therefore, we DENY her motion for leave to submit an additional pleading.

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

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:

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.

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. 420 (2017). If you have a 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 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

(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