                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JESSIE NICHOLAS JEUNE,                          DOCKET NUMBER
                   Appellant,                        PH-315H-15-0224-B-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 24, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Nancy Gail Matza, Esquire, Somerville, Massachusetts, for the appellant.

           Jonathan Smith, Bedford, Massachusetts, 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 remand 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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).
¶2         The appellant filed an appeal with the Board challenging the agency’s
     action terminating her from the position of Supervisory Financial Management
     Specialist on February 4, 2015, during her probationary period at a Veterans
     Hospital. Jeune v. Department of Veterans Affairs, MSPB Docket No. PH-315H-
     15-0224-I-1, Initial Appeal File (IAF), Tab 1. The administrative judge informed
     the appellant of the criteria for establishing jurisdiction based on the claims she
     raised on appeal and ordered her to submit evidence and argument to establish
     why the appeal should not be dismissed for lack of jurisdiction. IAF, Tab 2 at 4.
     After the appellant failed to respond to the order, the administrative judge issued
     an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7,
     Initial Decision (ID).
¶3         In reaching his decision, the administrative judge found that the appellant
     did not meet the legal definition of an “employee” who would be allowed to
     appeal her termination as an adverse action. ID at 4. The administrative judge
     also found it undisputed that the agency appointed the appellant to a
     competitive‑service position, effective February 9, 2014; that her position was
     subject to a 1-year probationary period; and that the agency terminated her on
     February 4, 2015, for post-appointment reasons.      ID at 3. The administrative
                                                                                       3

     judge further found that the appellant did not allege that her termination was
     based on marital status discrimination or for partisan political reasons, which are
     the only bases for finding Board jurisdiction over an appeal of a probationer’s
     termination for post-appointment reasons. Id.
¶4         The appellant filed a petition for review of the initial decision arguing that
     the agency ignored her veterans’ preference, and that the agency never told her
     “what level of conduct was unacceptable” during her probationary period. Jeune
     v. Department of Veterans Affairs, MSPB Docket No. PH-315H-15-0224-I-1,
     Petition for Review (PFR) File, Tab 1 at 12. The appellant also claimed harmful
     procedural error and alleged whistleblower retaliation and violations under the
     Uniformed Services Employment and Reemployment Rights Act of 1994
     (USERRA) and the Veterans Employment Opportunities Act of 1998 (VEOA).
     Id. at 4.
¶5         The Board remanded the appeal to the regional office for adjudication of the
     jurisdictional issues applicable to an individual right of appeal (IRA) appeal and
     claims under USERRA and VEOA.           Jeune v. Department of Veterans Affairs,
     MSPB Docket No. PH-315H-15-0224-I-1, Remand Order, ¶¶ 8-9 (Sept. 11, 2015)
     (Remand Order).     The Board directed the administrative judge on remand to
     inform the appellant of what she was required to show to establish Board
     jurisdiction over an IRA appeal and her additional claims under USERRA and
     VEOA. Id., ¶¶ 8-9. The Board also directed the administrative judge to allow the
     parties an opportunity to submit evidence and argument on these issues and to
     adjudicate the merits if jurisdiction was established. Id.
¶6         On remand, the administrative judge held a conference call with the parties
     to explain the jurisdictional burdens.        Remand File (RF), Tab 3.          The
     administrative judge also issued an order on September 24, 2015, memorializing
     the conference call and providing the parties with an opportunity to submit any
     exceptions or objections. Id. Thereafter, on October 27, 2015, the administrative
     judge ordered the appellant to show cause why her appeal should not be dismissed
                                                                                         4

     for lack of Board jurisdiction. RF, Tab 4. After the appellant failed to respond to
     the administrative judge’s orders, he dismissed the appeal for lack of jurisdiction
     finding that the appellant failed to prove jurisdiction over her case as an IRA
     appeal or under USERRA or VEOA. RF, Tab 5, Remand Initial Decision (RID)
     at 2, 4-6.    In reaching his decision, the administrative judge found that the
     appellant did not allege that she exhausted her administrative remedies before the
     Office of Special Counsel regarding her whistleblower retaliation allegation, and
     she did not assert that she first filed a complaint with the Department of Labor
     regarding a VEOA claim. RID at 4. The administrative judge also found that the
     appellant failed to allege specifically that the agency discriminated against her
     because of her military service. RID at 5. In addition, the administrative judge
     noted that the Board did not disturb his prior findings that the agency terminated
     the appellant during her probationary period; that she did not allege that her
     termination was based on marital status discrimination or for partisan political
     reasons; and that she did not meet the definition of an “employee” entitling her to
     bring an adverse action appeal. RID at 2.
¶7        The appellant filed a petition for review alleging that the agency
     miscategorized her as a probationer and that the Board should review her appeal
     as the termination of a permanent nonprobationary employee. Remand Petition
     for Review (RPFR), Tab 1, Tab 3 at 4. In support of her petition, the appellant
     submitted: (1) a job posting that closed on November 1, 2013, advertising her
     former position; and (2) part of the Standard Form 50 (SF-50) documenting her
     February 9, 2014 career-conditional appointment, which is part of the record on
     appeal. RPFR File, Tab 3 at 2-3; IAF, Tab 6 at 8-9. The appellant asserts that
     this evidence previously was unavailable because the agency did not respond to
     her subpoena and she “had to review all documents from various resources before
     [she] could find the information that [she] requested from the VA Medical Center,
     thus making it difficult to provide them earlier.” RPFR File, Tab 3 at 4. The
     appellant    also   alleges   whistleblower   retaliation   and   race   and   gender
                                                                                       5

     discrimination. Id. The agency responded in opposition to her petition. RPFR
     File, Tab 4.
¶8         The appellant, who was represented by an attorney in her proceedings
     before the Board, does not explain her failure to respond to the show cause order
     on jurisdiction prior to the filing deadline of November 6, 2015, or her failure to
     request an extension of time to respond.       Moreover, the appellant offers no
     evidence or argument on review showing that the Board has jurisdiction over her
     allegations as an IRA appeal or under VEOA or USERRA.                Although the
     appellant argues for the first time on review that she was not serving a
     probationary period when the agency terminated her, this issue is not properly
     before the Board. RPFR File, Tab 3 at 4. In the remand order, the Board found
     that the appellant did not dispute that she was terminated during her probationary
     period for post-appointment reasons or allege that the agency terminated her for
     partisan political reasons or due to marital status discrimination, and that she did
     not qualify as an “employee” with appeal rights under chapter 75. RID at 2;
     Remand Order, ¶ 7. Regardless, with respect to the jurisdictional issue, we find
     that the evidence submitted by the appellant on review is neither new nor of
     sufficient weight to warrant an outcome different from that of the remand initial
     decision. 2 See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
     We therefore deny her petition for review.




     2
      On review, the appellant submitted an incomplete copy of the SF-50 documenting her
     appointment. RPFR File, Tab 3 at 2. The omitted page is part of the record on appeal
     and states that her career-conditional appointment to the position of Supervisory
     Financial Management Specialist was subject to the completion of a 1-year initial
     probationary/trial period beginning on February 9, 2014. IAF, Tab 6 at 8. The
     documentary evidence reflects that the agency terminated the appellant, effective
     February 4, 2015, before the expiration of her probationary period. IAF, Tab 1 at 8.
     The appellant offered no contrary evidence on review.
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                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 U.S. 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 U.S. 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
                                                                                  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.
