Keyona R. Harris v. Department of Veterans Affairs ( 2014 )


Menu:
  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KEYONA R. HARRIS,                               DOCKET NUMBER
    Appellant,                         CH-315H-14-0316-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: August 15, 2014
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Keyona R. Harris, Chicago, Illinois, pro se.
    Janet M. Kyte, Esquire, Hines, Illinois, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, 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 when: the initial decision contains erroneous findings of material
    fact; the initial decision is based on an erroneous interpretation of statute or
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    regulation or the erroneous application of the law to the facts of the case; the
    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. See 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, and based on the following points and
    authorities, 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).
    BACKGROUND
    ¶2        The appellant, a nonpreference eligible, was appointed to a GS-3 Nursing
    Assistant position at the Jesse Brown Veterans Affairs Medical Center effective
    February 24, 2013. Initial Appeal File (IAF), Tab 6 at 8. The appointment was
    subject to the completion of a 1-year initial probationary/trial period. 
    Id.
     The
    agency terminated the appellant effective February 20, 2014, for performance
    problems. IAF, Tab 1 at 8-10; Petition for Review (PFR) File, Tab 5 at 12. She
    timely filed an appeal to the Board.        IAF, Tab 1.    In the first order on
    jurisdiction, the administrative judge provided incorrect information pertaining
    to competitive service employees, rather than excepted service employees. IAF,
    Tab 2 at 2.    The administrative judge issued a second jurisdictional order
    purporting to correct the first order, which explained: (1) the Board only has
    jurisdiction over Veterans Health Administration employees appointed under the
    authority of 
    38 U.S.C. § 7401
    (3), and (2) upon the administrative judge’s review,
    section 7401(3) did not appear to include nursing assistants, so it was likely that
    3
    the Board did not have jurisdiction to hear her appeal. 2 IAF, Tab 7 at 2. The
    administrative judge allowed the appellant 15 days to file evidence and argument
    to prove that her appeal was within the Board’s jurisdiction.                  
    Id.
       The
    administrative judge also ordered the agency to clarify the statutory authority
    under which the appellant had been appointed.              
    Id.
       The appellant timely
    responded but addressed only the merits of her appeal. IAF, Tab 8. The agency
    did not respond.
    ¶3         The administrative judge issued an initial decision, without holding the
    requested hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 9,
    Initial Decision (ID) at 1. Specifically, the administrative judge found that the
    appellant did not qualify as an “employee” with Board appeal rights under
    
    5 U.S.C. § 7511
    (a)(1)(C) because she was an excepted service employee serving
    a probationary period with less than 1 year of current continuous service with the
    agency. 3 
    Id. at 2-3
    .
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶4         The appellant filed a request for reconsideration and review with the
    Central Regional Office, which forwarded the pleading to the Clerk of the Board,
    which docketed it as a timely filed petition for review. PFR File, Tabs 1, 2. The
    appellant does not challenge the administrative judge’s jurisdictional finding but
    instead challenges the merits of her termination. 4 PFR File, Tab 1. The agency
    2
    In fact, the appellant was appointed under the authority of 
    38 U.S.C. § 7401
    (3). See
    PFR File, Tab 5 at 10.
    3
    The administrative judge’s finding that the appellant had less than 1 year of current
    continuous service is factually correct; however, we note that it is not the correct
    jurisdictional inquiry under the applicable statutory provision, which requires 2 years of
    current continuous service to qualify as an “employee” with Board appeal rights, where,
    as here, the appellant is not a preference eligible. 
    5 U.S.C. § 7511
    (a)(1)(C)(ii).
    4
    In support of her petition for   review, the appellant submits doctors’ notes and a
    witness statement to rebut the      agency’s allegations of attendance and behavior
    problems. PFR File, Tab 1. The     appellant also filed another pleading, which has been
    considered as a motion for leave   to submit an additional pleading, asking for leave to
    4
    has submitted a response opposing appellant’s petition for review. PFR File,
    Tab 5 at 4-6.
    ¶5         As a preliminary matter, we note that the appellant was not notified of her
    jurisdictional burden as a nonpreference-eligible excepted service probationary
    employee at any time prior to the initial decision. See IAF, Tabs 2, 7. Although
    the administrative judge issued two separate orders on jurisdiction, neither
    mentioned the relevant jurisdictional statute, 
    5 U.S.C. § 7511
    (a)(1)(C). See IAF,
    Tabs 2, 7. However, an administrative judge’s failure to provide an appellant
    with proper notice regarding an issue can be cured if the initial decision itself
    puts the appellant on notice of what she must do to address the issue, thus
    affording her with the opportunity to meet her burden in a petition for review.
    See Easterling v. U.S. Postal Service, 
    110 M.S.P.R. 41
    , ¶ 11 (2008); Mapstone v.
    Department of the Interior, 
    106 M.S.P.R. 691
    , ¶ 9 (2007). Here, we find that the
    initial decision, which relied on the correct statutory provision, placed the
    appellant on notice of her jurisdictional burden and that she was afforded an
    opportunity to meet her jurisdictional burden in the petition for review.
    ¶6         On review, the appellant does not challenge, and we discern no reason to
    disturb, the administrative judge’s finding that the Board lacked jurisdiction over
    this appeal.    ID at 2-3.     Only an “employee,” as defined under 5 U.S.C.
    chapter 75, subchapter II, can appeal to the Board from an adverse action such as
    a removal. Barrand v. Department of Veterans Affairs, 
    112 M.S.P.R. 210
    , ¶ 8
    (2009); see 
    5 U.S.C. §§ 7511
    (a)(1), 7512(1), 7513(d). A nonpreference-eligible
    individual in the excepted service is an “employee” within the meaning of
    
    5 U.S.C. § 7511
     only if she:      (1) is not serving a probationary or trial period
    submit additional information pertaining to her termination.         PFR File, Tab 3.
    However, the appellant’s arguments and evidence regarding her termination have no
    bearing on the jurisdictional issue before the Board. We deny the appellant’s motion
    for leave to submit an additional pleading upon finding that she has not shown that the
    alleged new evidence is material to the dispositive issues in this case. See 
    5 C.F.R. §§ 1201.114
    (k), 1201.115(d).
    5
    under an initial appointment pending conversion to the competitive service; or
    (2) has completed 2 years of current continuous service in the same or similar
    positions in an executive agency under other than a temporary appointment
    limited to 2 years or less.      
    5 U.S.C. § 7511
    (a)(1)(C)(i)-(ii).   Because it is
    undisputed that the appellant was serving a 1-year probationary period and had
    less than 2 years of current continuous service with an executive agency, IAF,
    Tab 1, PFR File, Tab 5 at 10, the Board does not have jurisdiction to hear
    her appeal.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States Court of Appeals for the Federal Circuit. You must submit your request to
    the court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    The court must receive your request for review no later than 60 calendar days
    after the date of this order. See 
    5 U.S.C. § 7703
    (b)(1)(A) (as rev. eff. Dec. 27,
    2012). If you choose to file, be very careful to file on time. The court has held
    that normally it does not have the authority to waive this statutory deadline and
    that filings that do not comply with the deadline must be dismissed. See Pinat v.
    Office of Personnel Management, 
    931 F.2d 1544
     (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (
    5 U.S.C. § 7703
    ) (as rev. eff.
    Dec. 27, 2012).    You may read this law as well as other sections of the
    United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
    Additional information is available at the court's website, www.cafc.uscourts.gov.
    6
    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, and 11.
    If you are interested in securing pro bono representation for your court
    appeal, you may visit our website at http://www.mspb.gov/probono for a list of
    attorneys who have expressed interest in providing pro bono representation for
    Merit Systems Protection Board appellants before the court. The Merit Systems
    Protection Board neither endorses the services provided by any attorney nor
    warrants that any attorney will accept representation in a given case.
    FOR THE BOARD:                            ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 8/15/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021