                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     STEPHEN PRESCOTT DURHAM,                        DOCKET NUMBER
                  Appellant,                         AT-0752-14-0521-I-1

                  v.

     TENNESSEE VALLEY AUTHORITY,                     DATE: March 25, 2015
                  Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Stephen Prescott Durham, Jasper, Tennessee, pro se.

           Ryan T. Dreke, Esquire, Knoxville, Tennessee, 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 his removal 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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     the facts of the case; the 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, and based on the following
     points and authorities, 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 was an Assistant Unit Operator at the agency’s Widow Creek
     Fossil Plant. See Initial Appeal File (IAF), Tab 5, Subtab 4b at 1. In or around
     March 2005, the agency removed him for noncompliance with the agency’s
     random alcohol and drug testing program. Id. In March 2005, he initiated both a
     grievance and a complaint with the Equal Employment Opportunity Commission
     (EEOC), concerning his removal and events leading up to it. See IAF, Tab 5,
     Subtabs 4c-4d.    The grievance and equal employment opportunity claim were
     both denied. IAF, Tab 5, Subtab 4c at 4, Subtab 4d at 9.
¶3        In October 2009, years after the appellant’s removal from the agency, the
     Department of Veterans Affairs (DVA) issued a decision, finding that the
     appellant had a service-connected disability. IAF, Tab 5, Subtab 4f. The 2009
     DVA decision concluded that a pre-existing neck disability had been exacerbated
     during a period of military training in 1998. Id. at 17. The DVA reached this
     2009 decision, despite a July 2005 final rating decision denying the same,
     because the appellant had presented new and material evidence. See id. at 3-4,
     10-11. The DVA has since certified that the appellant is a preference eligible.
     IAF, Tab 5, Subtab 4n.
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¶4         In March 2014, 9 years after the agency removed him from his Assistant
     Unit Operator position, the appellant filed a Board appeal. IAF, Tab 1. Among
     other things, he alleged that the agency failed to notify him of Board appeal rights
     at   the   time of his     removal,    despite   its purported      knowledge     of his
     service-connected disability. 2 Id. at 5. The agency responded, asserting that the
     Board lacked jurisdiction because the appellant was not a preference eligible with
     appeal rights at the time of his removal.            IAF, Tab 5, Subtab 1 at 2-7.
     Alternatively, the agency argued that the appeal was barred by res judicata,
     collateral estoppel, or laches. Id. at 7-9.
¶5         The administrative judge dismissed the appeal for lack of Board
     jurisdiction. 3   IAF, Tab 17, Initial Decision (ID).       The appellant has filed a
     petition for review. 4 Petition for Review (PFR) File, Tab 1. The agency has filed
     a response, and the appellant has replied. PFR File, Tabs 3-4.


     2
         The appellant’s appeal included a reference to the Veterans Employment
     Opportunities Act of 1998 (VEOA). IAF, Tab 1 at 10-12. He requested VEOA
     damages, alleging that the agency denied him justice under VEOA. Id. However, it
     does not appear that the appellant intended to bring, or has anything resembling, a
     colorable VEOA claim. Therefore, his mere reference to VEOA, in th is context, did not
     trigger the requirement to provide Burgess notice. See generally Burgess v. Merit
     Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant must
     receive explicit information on what is required to establish an appealable jurisdictional
     issue); Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 6 (2008) (to
     establish Board jurisdiction over a VEOA appeal alleging violation of veterans’
     preference rights under 5 U.S.C. § 3330a, an appellant must: (1) show that he
     exhausted his remedy with the Department of Labor; and (2) make nonfrivolous
     allegations that (a) he is a preference eligible within the mean ing of VEOA, (b) the
     action at issue took place on or after the October 30, 1998 enactment date of VEOA,
     and (c) the agency violated his rights under a statute or regulation related to veterans’
     preference).
     3
       Because the administrative judge dism issed the appeal for lack of jurisdiction, he did
     not address the timeliness of the appeal. ID at 8-9; see Rosell v. Department of
     Defense, 100 M.S.P.R. 594, ¶ 5 (2005) (the ex istence of Board jurisdiction is the
     threshold issue in adjudicating an appeal and ordinarily should be determined before
     reaching the issue of timeliness), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
     4
      Much of the appellant’s argument concerns the merits of his appeal. See PFR File,
     Tab 4 at 4-7. However, the Board must first resolve the threshold issue of jurisdiction
                                                                                        4

¶6         The appellant bears the burden of proving, by preponderant evidence, that
     his appeal is within the Board’s jurisdiction.    5 C.F.R. § 1201.56(a)(2)(i).     A
     preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
     The appellant’s status as a preference eligible due to a service-connected
     disability is not retroactive.
¶7         In general, employees of the Tennessee Valley Authority (TVA) do not
     have the right to appeal their removals to the Board. See 5 U.S.C. §§ 7511(b)(8),
     7512, 7513. However, an exception exists for any individual who is a preference
     eligible in the excepted service and has completed 1 year of current continuous
     service in the same or similar position. 5 U.S.C. § 7511(a)(1)(B)(i), (b)(8).
¶8         Here, the parties have not disputed that the appellant was in the excepted
     service.   See Whitehurst v. Tennessee Valley Authority, 43 M.S.P.R. 486, 492
     (1990) (employees of the TVA are in the excepted service, not the competitive
     service). In addition, the agency does not appear to dispute that the appellant had
     completed 1 year of current continuous service in the same or similar position at
     the time of his removal. See generally IAF, Tab 1 at 5 (initial appeal, asserting
     14 years of TVA experience), Tab 5, Subtab 4d at 5-7 (EEOC decision describing
     the appellant as having been employed at TVA from 1991 to 2005).                  The
     remaining jurisdictional element at issue is whether the appellant was a
     preference eligible.
¶9         Title 5 U.S.C. § 2108(3) sets forth the various criteria which establish one
     as a “preference eligible.” The appellant alleged that he was preference-eligible,
     covered under 5 U.S.C. § 2108(3)(C), because of a service-connected disability.
     See IAF, Tab 1 at 5, 10-11; see also PFR File, Tab 4 at 4. The agency does not


     before proceeding to the merits of an appeal. Schmittling v. Department of Army,
     219 F.3d 1332, 1337 (Fed. Cir. 2000). Because the appellant has yet to establish
     jurisdiction, we have not considered his arguments as to the merits of h is removal.
                                                                                                5

      dispute that the appellant has now established a service-connected disability, such
      that he is currently a preference eligible.        See IAF, Tab 5, Subtab 1 at 4-7.
      Instead, the agency argues that the 2009 DVA decision cannot be applied
      retroactively to his 2005 termination, even though that DVA decision concluded
      that the appellant suffered a service-connected disability in 1998. Id.; PFR File,
      Tab 3 at 5-9. We agree.
¶10         Board precedent most pertinent to the appellant’s case is Mitchell v.
      Department of Commerce, 100 M.S.P.R. 415 (2005). 5 In Mitchell, the agency
      imposed an adverse action on the appellant when he had not yet been deemed a
      preference eligible by the DVA.         Id., ¶¶ 4, 7.   After the administrative judge
      dismissed his appeal for lack of jurisdiction and that decision became final, the
      DVA issued a decision finding that the appellant had a service-related disability,
      retroactive to a time before both the agency’s adverse action and the Board’s
      dismissal for lack of jurisdiction. Id., ¶¶ 2, 4, 6. More than a year later, the
      appellant in Mitchell submitted this DVA determination to the Board for
      consideration. Id., ¶ 6. The Board declined to reopen his appeal based upon two
      rationales.   First, the Board concluded that the appellant failed to show that
      extraordinary circumstances caused his lengthy delay in bringing the DVA
      determination to its attention.     Id., ¶ 10. Second, and most relevant to the case
      currently before us, the Board noted that an employee must be a preference
      eligible at the time of the agency’s action in order to have appeal rights to the
      Board, and the appellant failed to meet that standard because he had neither
      “established the present existence of a service-connected disability,” nor had he

      5
        Below, in addition to Mitchell, the administrative judge considered Pierce v. U.S.
      Postal Service, 96 M.S.P.R. 38, ¶ 13 (2004). ID at 6-8. We find both decisions less
      persuasive than Mitchell. Pierce is distinguishable because the DVA certification at
      issue was retroactive but not so far back as to include the time in which the agency
      removed the appellant from service. See Pierce, 96 M.S.P.R. 38, ¶¶ 4-5. Redding is
      distingu ishable because the appellant did not establish that he was preference-eligib le at
      any time. Redding, 3 M.S.P.R. at 415-16. Instead, he simply asserted that he was
      applying for a service-connected disability. I d.
                                                                                       6

      been “receiving compensation, disability retirement benefits, or a pension
      because of a public statute administered by the [DVA] or a military department”
      at the time of his removal. Id., ¶ 12 (quoting 5 U.S.C. § 2108(2) (defining the
      term “disabled veteran”)).
¶11         In a nonprecedential decision, the U.S. Court of Appeals for the Federal
      Circuit cited Mitchell to similarly conclude that a DVA determination is not
      retroactive for purposes of the Board’s jurisdiction. Smith v. U.S. Postal Service,
      No. 2006-3244, 2006 WL 3206122, at *2 (Fed. Cir. Nov. 7, 2006). The court
      found that an employee must be determined to qualify as a preference-eligible
      employee, such as by being a disabled veteran, at the time of the agency’s adverse
      action for purposes of Board appeal rights.         Id.   The court explained, “a
      subsequent decision by the DVA determining that the employee is a disabled
      veteran does not confer jurisdiction on the Board, even if that subsequent decision
      is made retroactive or establishes that the employee was in fact disabled at the
      time of the agency action under review.” Id. Finally, the court reasoned that the
      relevant statute defines “disabled veteran” as someone who, among other things,
      “has established the present existence of a service-connected disability,” and the
      appellant had not yet established his disability when the agency removed him. Id.
      (citing 5 U.S.C. § 2108(2)); see generally Dean v. Office of Personnel
      Management, 115 M.S.P.R. 157, ¶ 14 (2010) (the Board may follow
      nonprecedential Federal Circuit decisions that it finds persuasive).
¶12         The appellant has argued that an older Board case supports a conclusion
      contrary to that of Mitchell and Smith. See IAF, Tab 1 at 11-12 (citing Battle v.
      U.S. Postal Service, 61 M.S.P.R. 509 (1994)). In Battle, the agency removed the
      appellant without providing the appeal rights to which a preference eligible is
      entitled.   61 M.S.P.R. at 510.    Years later, the appellant submitted a Board
      appeal. Id. With the appeal, he submitted a DVA letter, dated years after his
      removal, certifying that he had a service-connected disability. Id. Citing that
                                                                                         7

      letter, the Board concluded that the appellant had established Board jurisdiction
      because he was a preference eligible. Id. at 511.
¶13          At first glance, Battle appears contrary to Mitchell and Smith, but we find
      the Battle decision lacking in pertinent details.     In Battle, the appellant was
      removed in 1989, and the DVA letter proving he was a preference eligible was
      dated 1994. Id. at 510. However, nothing in the decision specifies whether that
      1994 DVA letter was a new determination, to be applied retroactively, as opposed
      to certification of a prior determination.       Accordingly, we find Battle not
      persuasive.
¶14          To conclude, an employee of the TVA can appeal his removal to the Board
      if, among other things, he is a preference eligible. 5 U.S.C. § 7511(a)(1)(B)(i),
      (b)(8). Pursuant to 5 U.S.C. § 2108(2), (3)(C), an individual may establish that
      he is a preference-eligible disabled veteran if, among other things, he had a
      service-connected disability at the time of the alleged adverse action. Because
      the appellant had not yet established a service-connected disability at the time of
      his removal, he was not yet a preference-eligible disabled veteran with Board
      appeal rights. Accordingly, we agree with the administrative judge’s conclusion
      that 5 U.S.C. § 7511 does not confer Board jurisdiction over his removal from the
      TVA.
      The appellant has not otherwise established that he was a preference eligible at
      the time of his removal.
¶15          On review, the appellant seems to suggest that he also qualified as a
      preference eligible when the agency removed him because he had a hardship
      discharge, exempting him from the length in service and active duty requirements
      for preference eligibility. PFR File, Tab 4 at 4-5. We disagree.
¶16          As an initial matter, we note that the appellant failed to clearly present the
      argument regarding his hardship discharge below. See IAF, Tab 1 at 12 (asserting
      that his most recent hardship discharge from the military satisfied any time in
      service requirement). In general, the Board will not consider an argument raised
                                                                                  8

for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any case,
while the record does indicate that the appellant’s discharge from the Air Force in
1989 was due to hardship, it does not give any indication that the appellant was a
preference eligible based upon that service. See IAF, Tab 5, Subtab 4g. Nothing
in the record suggests that the appellant served on active duty in the armed forces
during a war, in a campaign or expedition for which a campaign badge has been
authorized, or any other time which would entitle him to a veterans’ preference.
See 5 U.S.C. § 2108(1), (3).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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
                                                                                9

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The 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.
