                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NATHAN L. WEISER,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0240-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: August 25, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL *

           David R. Schleicher, Esquire, Waco, Texas, for the appellant.

           Michael J. Coster, Esquire, East Ely, Nevada, for the appellant.

           Candyce Phoenix, Esquire and James V. Blair, Esquire, Washington, D.C.,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER


¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeal of his removal and denied corrective

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     action   on   his   claim    under    the   Uniformed   Services   Employment   and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA). For the reasons discussed below, we GRANT the appellant’s petition
     for review and AFFIRM that portion of the initial decision pertaining to his
     USERRA claim, VACATE that portion of the initial decision dismissing his
     removal appeal for lack of jurisdiction, and REMAND the removal appeal for
     further jurisdictional proceedings.
¶2        The agency appointed the appellant to an excepted service GS-7
     Information Technology Specialist position under the Pathways Program on
     March 10, 2013.      Initial Appeal File (IAF), Tab 5 at 13.       Following a joint
     agency/Office of Personnel Management audit that determined that the appellant
     did not meet the minimum qualification standards for his position, the agency
     removed him effective November 29, 2013. IAF, Tab 33 at 69. He appealed, but
     did not request a hearing.
¶3        The administrative judge found that the agency met its burden of production
     on the issue of whether the appellant’s appointment was illegal, and she
     dismissed the removal portion of the appeal for lack of jurisdiction.         Initial
     Decision (ID) at 2-8.        She also denied corrective action in the appellant’s
     USERRA claim. ID at 8-11.
¶4        The appellant based his USERRA claim on a theory of disparate treatment,
     and the administrative judge found that the comparators he identified were not
     similarly situated to the appellant and that the appellant was not entitled to
     corrective action. The administrative judge’s analysis is correct and, because the
     appellant does not challenge her USERRA findings, we see no reason to revisit
     them. Accordingly, that portion of the initial decision denying corrective action
     under USERRA is affirmed.
¶5        The administrative judge dismissed the appellant’s removal claim for lack
     of jurisdiction on the basis that the agency proved that the appellant was not
     minimally qualified for his position and therefore, the appointment was illegal.
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     Although the administrative judge explicitly found that the appellant’s separation
     was properly seen as a removal, rather than a cancellation of an appointment, ID
     at 3-5, her analysis of the case relied on precedent applicable when an agency
     cancels a promotion and returns the employee to his prior position, ID at 5-7.
¶6         The Board has caselaw more directly on point that was applicable in the
     appellant’s case, namely Travaglini v. Department of Education, 18 M.S.P.R.
     127, 137-38 (1983), which established the rule that an employee who is removed
     from his position because his appointment was determined to be illegal still has
     chapter 75 rights, including the right to appeal to the Board if he otherwise has
     appeal rights unless “the appointment is made in violation of an absolute statutory
     prohibition so that the appointee is not qualified for appointment in the civil
     service; or . . . the appointee has committed fraud in regard to the appointment or
     has misrepresented or concealed a matter material to the appointment.” Another
     way of phrasing this test is:
           An appellant against whom an agency takes an action based on an
           allegedly unlawful appointment is not deprived of the procedural
           rights to which he would otherwise be entitled unless the
           appointment violates an absolute statutory prohibition so that the
           appointee is not qualified for appointment in the civil service.
     Keller v. Department of the Navy, 69 M.S.P.R. 183, 187 (1996); see Wallace v.
     Department of Commerce, 106 M.S.P.R. 23, ¶ 9 (2007); Lovoy v. Department of
     Health & Human Services, 94 M.S.P.R. 571, ¶ 29 (2003); Daneshpayeh v.
     Department of the Air Force, 57 M.S.P.R. 672, 676 (1993), aff’d, 17 F.3d 1444
     (Fed. Cir. 1994) (Table); Torres v. Department of the Treasury, 47 M.S.P.R. 421,
     422 (1991).
¶7         Whether an appointment was actually illegal and rightfully terminated is not
     a matter of jurisdiction, as the administrative judge found. It is instead the basis
     for the adverse action, the “charge” (albeit a nondisciplinary charge), that the
     agency must prove to prevail on the merits of the appeal. The Board must first
     resolve the threshold issue of jurisdiction before proceeding to the merits of an
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      appeal. Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir.
      2000). The Board must satisfy itself that it has authority to adjudicate the matter
      before it and may raise the issue of its own jurisdiction at any time. Metzenbaum
      v. General Services Administration, 96 M.S.P.R. 104, ¶ 15 (2004). We find that
      the administrative judge’s jurisdictional analysis is problematic in several ways
      and that it is necessary to reconsider whether the Board has jurisdiction over this
      appeal.
¶8         First, the administrative judge made no explicit finding as to whether the
      appellant was an “employee” under 5 U.S.C. § 7511(a)(1).        To the extent she
      relied on the agency’s purported concession that the appellant was an
      “employee,” IAF, Tab 5 at 6, whether the appellant was an “employee” is a legal
      determination for the Board to make and is not subject to stipulation or
      concession, see Heath v. U.S. Postal Service, 107 M.S.P.R. 366, ¶ 6 (2007). To
      the extent that she may have implicitly found that the appellant was an
      “employee” with Board appeal rights because he had “well over a year” of service
      in the position from which he was removed, that finding is incorrect.          The
      appellant was appointed on March 10, 2013, and terminated on November 29,
      2013, considerably less than 1 year. See IAF, Tab 5 at 13, Tab 33 at 69.
¶9         At the outset, we note that section 7511(a)(1) sets forth three different
      definitions of the term “employee” for three different types of individuals. The
      first, subsection (a)(1)(A), applies only to the competitive service.          The
      appellant’s position was in the excepted service, so he is not an employee under
      subsection (a)(1)(A).
¶10        The second, subsection (a)(1)(B), applies to preference eligibles in the
      excepted service. The appellant has prior military service, IAF, Tab 43 at 25, but
      there has been no analysis as to whether his military service renders him
      “preference eligible” as defined in 5 U.S.C. § 2108(3). If it does not, then the
      only other way the appellant can establish that he is an “employee” is
      subsection (a)(1)(C), which applies to nonpreference eligibles in the excepted
                                                                                       5

      service. Under either subsection (a)(1)(B) or (a)(1)(C), an individual is only an
      “employee” if he has a certain amount of current continuous service in the same
      or similar positions.   “Current continuous service” means service immediately
      prior to the action at issue without a break in service of a work day. McCrary v.
      Department of the Army, 103 M.S.P.R. 266, ¶ 8 (2006).
¶11         The record contains no information concerning whether the appellant had a
      break in service. Furthermore, while the record reflects that the appellant’s prior
      position was a GS-5 Customs and Border Control Officer Trainee, we know
      nothing else about the position. From the position titles alone, it seems highly
      unlikely that an Officer Trainee for Customs and Border Patrol performs the same
      or similar duties as an Information Technology Specialist, but it is not the
      position titles or even the position descriptions, but the actual duties performed
      that determine whether positions are the same or similar. Martinez v. Department
      of Homeland Security, 118 M.S.P.R. 154, ¶ 9 (2012).
¶12         There is insufficient evidence to permit the Board to resolve any of these
      open questions on the existing record.       More importantly, 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 did not issue a notice either
      informing the appellant that he had the burden of showing he was an “employee”
      otherwise entitled to chapter 75 procedures or explaining to him how he could
      meet that burden. See IAF, Tabs 3, 6, 12, 15, 22-23, 25, 27, 28-30, 32. Because
      the appellant has not had an opportunity to prove that the Board has jurisdiction
      over this appeal, it is necessary to remand it.

                                            ORDER
            For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.           On
      remand, the administrative judge shall issue explicit notice informing the
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appellant of his burden of proof and how to meet it. She shall further determine
whether the appellant is a preference eligible, the length and nature of any break
in service, and whether his former position is the same as or similar to the
position from which he was removed, and she shall make a new jurisdictional
determination. If she finds jurisdiction, she shall then address the merits of the
appeal. If she finds no jurisdiction, then the appeal may be dismissed on that
basis.   The administrative judge should incorporate by reference her prior
analysis and disposition of the appellant’s USERRA claim in the new initial
decision on the removal claim so that he will have a single decision with
appropriate notice of appeal rights addressing both of his claims. See Goldberg v.
Department of Homeland Security, 99 M.S.P.R. 660, ¶ 12 (2005).




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
