                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALPHONSO R. TOBY,                               DOCKET NUMBER
                   Appellant,                        PH-0752-15-0289-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 23, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Ralph B. Pinskey, Esquire, Harrisburg, Pennsylvania, for the appellant.

           Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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 his appeal as untimely filed without good cause shown for the delay.
     For the reasons discussed below, we GRANT the appellant’s petition for review,



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

                                      BACKGROUND
¶2        In a previous appeal, the Board rejected the appellant’s contention that
     terminating his employment constituted discrimination under the Uniformed
     Services Employment and Reemployment Rights Act of 1994 (USERRA)
     (codified at 38 U.S.C. §§ 4301-4333). Toby v. Department of Veterans Affairs,
     MSPB Docket No. PH-4324-14-0392-I-1, Final Order, ¶¶ 6-8, 15 (Apr. 2, 2015).
     The Board acknowledged, however, that the appellant had made arguments in his
     petition for review suggesting that he was an “employee” within the meaning of
     5 U.S.C. § 7511 and that terminating his employment might constitute a
     “removal” that is appealable to the Board under 5 U.S.C. chapter 75, and it
     forwarded this “new claim” to the regional office for docketing as a chapter 75
     appeal. Id., ¶¶ 14, 16. The Board stated that it was making no finding as to
     whether it had jurisdiction over this new appeal or whether the chapter 75 claim
     had been timely raised. Id., ¶ 16.
¶3        The instant appeal was docketed on April 8, 2015.         Initial Appeal File,
     Tab 1, Tab 12, Initial Decision (ID) at 3.    Using this date, the administrative
     judge calculated that the appeal was filed more than 2 years late, as the
     employment termination occurred in February 2013.              ID at 3-4.       The
     administrative judge found that the appellant failed to establish good cause for his
     “excessive delay” in filing his Board appeal. ID at 5. The primary rationale for
     so ruling was the administrative judge’s determination that the appellant had
     deliberately opted not to raise a chapter 75 removal claim during the USERRA
     proceeding. ID at 4.
¶4        In a timely filed petition for review, the appellant contends as follows: it
     was error for the administrative judge to dismiss the appeal as untimely filed
     without ruling on whether the appellant established jurisdiction by showing that
                                                                                      3

     he is an “employee” with chapter 75 appeal rights, in that the Board has
     considered timeliness and jurisdiction to be inextricably intertwined in similar
     circumstances; the initial decision did not acknowledge or discuss the legal
     implications of the agency failing to notify him of his adverse action procedural
     rights; and his adverse action appeal should not be deemed to have been filed in
     April 2015, but rather in July or September 2014. Petition for Review (PFR) File,
     Tab 1. The agency did not file a response to the petition for review.

                                        ANALYSIS
     The administrative judge erred in dismissing the appeal as untimely filed without
     determining whether the appellant established jurisdiction.
¶5         An administrative judge may not dismiss an appeal as untimely without
     determining whether an appealable action has occurred when issues of timeliness
     and jurisdiction are “inextricably intertwined,” i.e., when resolution of the
     timeliness issue depends on whether the appellant was subjected to an appealable
     action.   E.g., Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5, aff’d,
     469 F. App’x 852 (Fed. Cir. 2011). One of the circumstances in which timeliness
     and jurisdictional issues are inextricably intertwined is when the jurisdictional
     question is whether the appellant was an “employee,” as defined in 5 U.S.C.
     § 7511, who is entitled to appeal a removal action but was not given notice of his
     right to appeal his termination as an adverse action. See Smart v. Department of
     Justice, 113 M.S.P.R. 393, ¶¶ 10—11 (2010), overruled on other grounds by Smart
     v. Department of Justice, 116 M.S.P.R. 582 (2011). The agency’s termination
     notice did not inform the appellant that he had the right to appeal his termination
     to the Board as a removal action.       Toby v. Department of Veterans Affairs,
     MSPB Docket No. PH-4324-14-0392-I-1, Initial Appeal File (0392 IAF), Tab 1 at
     10. Accordingly, it was error for the administrative judge to dismiss the instant
     appeal as untimely filed without first determining if the appellant had established
     jurisdiction.   The case must therefore be remanded to the regional office to
     resolve whether the appellant established jurisdiction.
                                                                                           4

¶6         The jurisdictional question to be resolved is whether the appellant, in his
     capacity as a Housekeeping Aid in 2012 and 2013, was an “employee” as defined
     in 5 U.S.C. § 7511(a)(1)(B), i.e., a “preference eligible in the excepted service
     who has completed 1 year of current continuous service under other than a
     temporary appointment limited to 1 year or less.” PFR File, Tab 1 at 4-9. 2 In
     addition to whether the appellant is preference eligible and whether he was
     employed in the excepted service, resolving this question will require
     consideration of two additional issues:       whether the Board should deem the
     appellant’s appointment in 2012 to have been a temporary one; and whether the
     appellant in fact completed 1 year of continuous service as a Housekeeping Aid in
     2012-2013.     Regarding the first question, the appellant relies on Roden v.
     Tennessee Valley Authority, 25 M.S.P.R. 363 (1984). In Roden, the Board held
     that the appellant established jurisdiction under 5 U.S.C. § 7511(a)(1)(B), even
     though he held a series of appointments designated as temporary that were
     separated by short breaks in service. 25 M.S.P.R. at 367-68. The Board reasoned
     that the agency had “effectively entered into a continuing contract” with the
     appellant, and that, “although these appointments purportedly constituted only
     temporary employment, they in fact reflected the appellant’s nontemporary
     employment in a continuing position or positions.” Id. at 368. The appellant
     argues that, as in Roden, the Board is not bound by the agency’s characterization
     of his 2012 appointment as “temporary.” PFR File, Tab 1 at 6-7. 3




     2
       As discussed below, the appellant’s legal rationale for why he is a chapter 75
     “employee” has changed from when he first raised this claim during the USERRA
     proceeding.
     3
       The appellant is not, as in Roden, claiming that different appointments that include
     short breaks in service should count as “continuous” service. He instead asserts that he
     performed a full year in a nontemporary appointment that began on February 26, 2012,
     and ended at the end of the work day on February 25, 2013. PFR File, Tab 1 at 7-8.
                                                                                          5

     Should the administrative judge find that the appellant has established
     jurisdiction, he shall find that the appeal was timely filed and that the removal
     must be reversed because the agency denied him due process of law.
¶7         When an agency fails to advise an employee of appeal rights when it should
     have done so, the appellant is not required to show that he exercised due diligence
     in attempting to discover his appeal rights; rather, he must show that he was
     diligent in filing an appeal after learning that he could do so.               Brown,
     115 M.S.P.R. 609, ¶ 5; Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 588
     (1995). As noted above, the administrative judge’s primary rationale in finding
     that the appellant was not diligent in pursuing an adverse action appeal was that
     the appellant deliberately opted not to raise a chapter 75 claim during the
     USERRA proceeding. We find, to the contrary, that the record shows that the
     appellant raised an adverse action claim during the USERRA proceeding, and that
     he did so as soon as he discovered a basis for such a claim.
¶8         The appellant’s initial filing on December 2, 2013, stated on its face that it
     was a USERRA appeal, 0392 IAF, Tab 1, which was recognized in the
     administrative   judge’s   acknowledgment      order   issued   the   following   day,
     0392 IAF, Tab 2. 4     In an order issued on March 6, 2014, however, the
     administrative judge stated, without mentioning a USERRA claim, that it
     “appears the appellant was serving in a temporary appointment,” cited legal
     authority for the proposition that employees serving in temporary appointments
     lack adverse action appeal rights, and ordered the appellant to submit evidence
     and argument to establish jurisdiction. 0392 IAF, Tab 8. This order could have
     been read as indicating either that the administrative judge believed that the
     appellant was raising a chapter 75 claim rather than a USERRA claim, or that the
     administrative judge believed that a temporary appointment might defeat
     USERRA jurisdiction. The appellant’s response to the March 6 order seems to

     4
       The administrative judge did not, however, issue a jurisdictional order regarding the
     requirements for a USERRA appeal until months later, on June 19, 2014. 0392 IAF,
     Tab 11.
                                                                                         6

      reflect both possibilities, stating that the chapter 75 case law cited in the March 6
      Order was inapposite because he had filed a USERRA claim, and he cited
      authority for the proposition that serving under a temporary appointment did not
      affect USERRA jurisdiction. 0392 IAF, Tab 9. In any event, the record does not
      support the administrative judge’s view that the appellant adamantly insisted that
      he was asserting only a USERRA claim and rejected the opportunity to also raise
      a chapter 75 claim.      It could not have appeared to the appellant that the
      administrative judge was genuinely offering an opportunity to file a chapter 75
      claim, as the legal authorities cited by the administrative judge indicated that a
      chapter 75 claim was not feasible for an employee with a temporary appointment.
¶9          Subsequently, the appellant did claim he was a chapter 75 “employee” in
      two pleadings filed in July 2014, the month before the USERRA initial decision
      was issued.   In the first, he indicated that he had just learned of a basis for
      believing that he might be a “reinstated” employee. 0392 IAF, Tab 27. Three
      days later, he filed a Motion to Expand Scope of Hearing, 0392 IAF, Tab 28, to
      include the issue of “whether Appellant’s February 27, 2012 appointment 5 was a
      reinstatement that met the criteria of 5 CFR Section 315.801(a)(2), in which case
      Appellant was a statutory ‘employee’ with adverse action rights under 5 U.S.C.
      Section 7511(a)(1)(A)(i) when the Agency terminated his employment,”
      0392 IAF, Tab 28 at 1. The administrative judge denied the motion, essentially
      ruling that the appellant’s argument for jurisdiction as a reinstated employee was
      without merit. 0392 IAF, Tab 30.
¶10         For the reasons discussed above, we conclude that the appellant raised a
      claim that he was a chapter 75 “employee” with adverse action appeal rights as
      soon as he had reason to question the agency’s statements and documentation that
      he was serving under a “temporary” appointment. And, although the appellant’s

      5
        The Standard Form 50 documenting the appellant’s appointment listed the effective
      date as February 26, 2012, a Sunday. 0392 IAF, Tab 31 at 4. The appellant appears to
      have reported for duty on Monday, February 27, 2012.
                                                                                       7

      legal rationale for why he is a chapter 75 “employee” has changed over time, he
      has maintained such a claim from July 2014 to the present. If the administrative
      judge should determine on remand that the appellant has established jurisdiction
      under chapter 75, he also shall find that this claim was timely raised. Moreover,
      the administrative judge shall in that event reverse the appellant’s removal, as it
      is undisputed that the agency failed to provide him with minimal due process, i.e.,
      prior notice and a meaningful opportunity to respond. See Stephen v. Department
      of the Air Force, 47 M.S.P.R. 672, 680-81 (1991).

                                           ORDER
¶11        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                           ______________________________
                                               Jennifer Everling
                                               Acting Clerk of the Board
      Washington, D.C.
