                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NINA F. HENDERSON,                              DOCKET NUMBER
                   Appellant,                        AT-0752-15-0715-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: June 16, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Nina F. Henderson, Memphis, Tennessee, pro se.

           Andrew M. Greene and John F. Dymond, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, 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
     regulation or the erroneous application of the law to the facts of the case; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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). As explained
     below, however, we FORWARD the appellant’s newly raised allegation of
     whistleblower reprisal to the regional office to be docketed as an individual right
     of action (IRA) appeal.
¶2        The appellant served as a Contact Representative with the agency’s Internal
     Revenue Service. Initial Appeal File (IAF), Tab 13 at 12. The appellant began
     working for the agency on November 21, 2012, was subject to a 1-year
     probationary period, and resigned from employment prior to completing her
     probationary period.      Id. at 9.   The appellant filed an appeal with the Board
     following her separation from employment, which she subsequently withdrew.
     See Henderson v. Department of the Treasury, MSPB Docket No. AT-0315-13-
     0140-I-1, Initial Decision (Dec. 13, 2012). The initial decision dismissing that
     appeal as withdrawn became final when neither party filed a petition for review.
     5 C.F.R. § 1201.113.
¶3        The appellant subsequently applied for several positions of employment
     with the agency in 2014 and 2015. IAF, Tab 5 at 3, Tab 9 at 3. The appellant
     either was not selected for these positions or did not commence employment with
                                                                                         3

     the agency. 2 Id. The appellant thereafter filed the instant appeal contesting the
     circumstances of her nonselection for employment in 2014 and 2015, and also
     alleging that her former supervisor misinformed her at the time of her resignation
     by telling her that she could reapply to work for the agency at a later date. IAF,
     Tab 5. In support of this latter allegation, the appellant asserted that an agency
     official told her that she was not selected because she previously had been
     terminated from employment and therefore was ineligible to return to work with
     the agency.    Id.   The appellant thus argued that she relied on her former
     supervisor’s misinformation to her detriment when making her decision to resign
     in 2012, rendering her resignation involuntary. Id.
¶4         The administrative judge issued several orders outlining the appellant’s
     burden of proof to establish jurisdiction over her appeal. IAF, Tabs 3, 8. The
     administrative judge thereafter issued an initial decision dismissing the appeal for
     lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). In her initial decision,
     the administrative judge found that the Board lacks jurisdiction over the
     appellant’s challenges to her nonselections under chapter 75 and that, because the
     appellant had not completed her 1-year probationary period when she resigned in
     2012, she was not an employee with appeal rights under 5 U.S.C. § 7511 who
     could file a constructive removal appeal. ID at 3-4.
¶5         The appellant has filed a petition for review arguing that she only wished to
     challenge her nonselection for employment in 2014 and that her former supervisor
     misled her into believing that she could reapply to work for the agency if she
     resigned. Petition for Review (PFR) File, Tab 1 at 4. On review, the appellant
     asserts for the first time that her former supervisor retaliated against her based on
     her protected whistleblowing activities when she allegedly provided her this



     2
      The appellant alleges that she was selected for a position in 2014 but that she never
     began work in that job because the agency withdrew its offer of employment based on
     her employment history with the agency. IAF, Tab 9 at 3.
                                                                                          4

     misinformation. Id. The agency has filed a response in opposition to the petition
     for review. PFR File, Tab 3.
¶6         We agree with the administrative judge’s jurisdictional dismissal of the
     appeal under chapter 75.        Absent an independent basis for jurisdiction, a
     nonselection is not an adverse action appealable to the Board under chapter 75.
     See 5 U.S.C. § 7512; Belhumeur v. Department of Transportation, 104 M.S.P.R.
     408, ¶ 5 (2007).      We thus agree with the administrative judge that the
     circumstances surrounding the appellant’s nonselection for employment are
     beyond the scope of the Board’s review under chapter 75. See Greenlee v. U.S.
     Postal Service, 101 M.S.P.R. 323, ¶ 6 (2006).
¶7         We further agree with the administrative judge that the appellant cannot
     establish the Board’s jurisdiction over her alleged constructive removal under
     chapter 75. An involuntary resignation or retirement, if proven, is tantamount to
     a removal within the Board’s jurisdiction under chapter 75. See Ford v. U.S.
     Postal Service, 82 M.S.P.R. 327, ¶ 12 (1999). Only an employee with appeal
     rights to the Board under chapter 75, however, can appeal an involuntary
     resignation. See Mfotchou v. Department of Veterans Affairs, 113 M.S.P.R. 317,
     ¶ 8 (2010). Here, in response to one of the administrative judge’s jurisdictional
     orders, the agency submitted unrebutted documentary evidence that the appellant
     was appointed to a competitive-service position in November 2012 and that she
     resigned from that position before completing her 1-year probationary period. 3
     IAF, Tabs 13-14. Accordingly, because the appellant is not an employee with
     appeal rights under chapter 75, see 5 U.S.C. § 7511(a)(1)(A), the Board lacks
     jurisdiction over the appellant’s allegation that her resignation from employment
     in 2012 was involuntary.


     3
       The agency also submitted unrefuted evidence that the appellant previously worked
     for the agency with a break in service of greater than 30 days, thus making this period
     of service ineligible for tacking under 5 C.F.R. § 315.802(b). See Hurston v.
     Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010); IAF, Tab 14 at 17, 22.
                                                                                             5

¶8         In her petition for review, however, the appellant raises for the first time an
     allegation that her supervisor provided her misinformation about her ability to
     seek reemployment with the agency based on her protected whistleblowing
     activity. PFR File, Tab 1 at 4. Although the appellant generally asserted below
     that her supervisor retaliated against her by providing her misinformation, she did
     not specifically allege that this retaliation was based                on her alleged
     whistleblowing activity under 5 U.S.C. § 2302(b)(8). IAF, Tab 5 at 3. Because
     the appellant now has specifically raised an allegation of whistleblower reprisal
     on petition for review, and because she was not apprised of her burden to
     establish the Board’s jurisdiction over an IRA appeal below, 4 we find it
     appropriate to forward her allegation of whistleblower retaliation to the regional
     office for docketing as an IRA appeal. See Neice v. Department of Homeland
     Security, 105 M.S.P.R. 211, ¶¶ 16-17 (2007).          After docketing the appeal, the
     administrative   judge    should    apprise   the   appellant   of   the   jurisdictional
     requirements for filing an IRA appeal, such as demonstrating that she exhausted
     her remedies by filing a complaint with the Office of Special Counsel (OSC), and
     nonfrivolously alleging that she made a protected disclosure that was a
     contributing factor in a challenged personnel action. 5 Id., ¶ 14.

     4
       The administrative judge noted in her initial decision that the appellant did not appear
     to be raising a claim of whistleblower retaliation. ID at 4 n.1. Based on the
     information that the appellant provided to the administrative judge, we agree that the
     appellant did not specifically raise an allegation of whistleblower reprisal below.
     5
        The fact that the appellant first filed this appeal seeking to raise an involuntary
     resignation claim under chapter 75 does not preclude her from filing an IRA appeal
     challenging the same action under 5 U.S.C. § 7121(g). Although an appellant generally
     is limited to filing a Board appeal, a grievance, or a complaint with OSC under 5 U.S.C.
     § 7121(g), the Board has held that if jurisdiction does not attach to the original choice
     made by the appellant—here, her filing a Board appeal—then the original choice would
     not constitute a true choice among viable alternatives, and it cannot serve as a binding
     election of remedies under 5 U.S.C. § 7121(g). See Scalera v. Department of the Navy,
     102 M.S.P.R. 43, ¶ 9 (2006). The Board also has recently held that an appellant can
     challenge a constructive adverse action as a personnel action in an IRA appeal. See
     Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014). We
     make no finding whether the appellant can establish she was subjected to an involuntary
                                                                                  6

                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the
U.S. 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. 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 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

resignation for purposes of demonstrating that she suffered a personnel action in
connection with an IRA appeal.
                                                                                  7

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.
