Gary Brown v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY L. BROWN, DOCKET NUMBER
Appellant, AT-315H-17-0513-I-1
v.
DEPARTMENT OF VETERANS DATE: January 23, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gary L. Brown, Gainesville, Florida, pro se.
Heather G. Blackmon, Esquire, Gainesville, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his termination 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute 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 petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify the appropriate jurisdictional standard, we
AFFIRM the initial decision.
¶2 The appellant is a preference eligible who was terminated from a Veterans
Recruitment Appointment (VRA). Initial Appeal File (IAF), Tab 6 at 20, 25.
“VRAs are excepted appointments, made without competition, to positions
otherwise in the competitive service.” 5 C.F.R. § 307.103. Individuals serving
under VRAs have the same appeal rights as excepted-service employees under
5 C.F.R. part 432 (concerning performance-based actions) and part 752
(concerning adverse actions). 5 C.F.R. § 307.105. In addition, any individual
serving under a VRA, whose employment is terminated within 1 year after the
date of such appointment, has the same right to appeal that termination under
5 C.F.R. § 315.806 as a career or career-conditional employee has during the first
year of employment. Maibaum v. Department of Veterans Affairs, 116 M.S.P.R.
234, ¶ 18 (2011); 5 C.F.R. § 307.105.
¶3 In the initial decision, the administrative judge correctly cited the statute
setting forth the relevant definition of an excepted-service employee with appeal
rights pursuant to 5 U.S.C. chapter 75. IAF, Tab 8, Initial Decision (ID) at 2
(citing 5 U.S.C. § 7511(a)(1)(B)). However, the administrative judge erroneously
3
analyzed the appeal pursuant to the definition applicable to individuals in the
competitive service. ID at 2-3; cf. 5 U.S.C. § 7511(a)(1)(A).
¶4 We modify the initial decision, as follows, to clarify the appropriate
jurisdictional standard applicable to the appellant. Only an “employee,” as
defined under 5 U.S.C. chapter 75, can appeal an adverse action to the Board.
Winns v. U.S. Postal Service, 124 M.S.P.R. 113, ¶ 8 (2017), aff’d sub nom.
Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018); see
5 U.S.C. §§ 7511(a)(1), 7513(d). As relevant here, an “employee” with adverse-
action appeal rights includes “a preference eligible in the excepted service who
has completed 1 year of current continuous service in the same or similar
positions” in an Executive agency. 5 U.S.C. § 7511(a)(1)(B)(i). When analyzing
section 7511(a)(1)(B), the Board defers to the regulation in 5 C.F.R. § 752.402,
which defines “current continuous employment” as “a period of employment or
service immediately preceding an adverse action without a break in Federal
civilian employment of a workday.” Winns, 124 M.S.P.R. 113, ¶¶ 13, 16. Here,
the appellant acknowledges that he only served 9 months in his position, and he
has not alleged one of the regulatory grounds for appealing his termination under
5 C.F.R. § 315.806. Petition for Review (PFR) File, Tab 2 at 3. Thus, we find
that he has failed to make a nonfrivolous allegation of jurisdiction. 2
¶5 We agree with the administrative judge’s finding that, to the extent the
appellant is raising a claim of disability discrimination, we lack the authority to
review such a claim absent an otherwise appealable action. ID at 3; see Wren v.
2
The administrative judge notified the appellant of how to establish he had chapter 75
appeal rights as an “employee” in the competitive service instead of the excepted
service. IAF, Tab 3 at 3-4. However, we find that any such error did not prejudice the
appellant’s substantive rights because he received adequate notice of the requirement to
prove that he completed 1 year of current continuous service to qualify as an
“employee” with appeal rights under 5 U.S.C. chapter 75, which is the dispositive issue
in this appeal. Id.; see 5 U.S.C. § 7511(a)(1)(B). Further, the administrative judge
correctly notified the appellant of the regulatory grounds for appealing a probationary
termination under 5 C.F.R. § 315.806. IAF, Tab 3 at 2-3.
4
Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982). In his petition for review, the appellant reasserts his arguments
on the merits of his termination. PFR File, Tab 2 at 3; IAF, Tab 1 at 2. We
decline to address these arguments further because they are not relevant to the
dispositive jurisdictional issue.
¶6 Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
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.
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.
5
(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:
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
6
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
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:
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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 th e
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
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.
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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 visi t 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.