U.S. Merit Systems Protection Board 
Case Report for February 1, 2013

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Susan M. Cunningham
Agency:  Department of the Army
Decision Number:  2013 MSPB 7
Docket Number:  DE-315H-12-0263-I-1
Issuance Date:  January 28, 2013
Action Type:  Probationary Termination

Court Review - Appeal Rights

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  Citing unsatisfactory performance, the agency terminated the appellant's employment during her 1-year probationary period.  On appeal to the Board,the appellant alleged, among other things, that her termination was the result of disability discrimination.  The administrative judge found that the appellant failed to make a nonfrivolous allegation that she was an "employee" within the meaning of 5 U.S.C. 7511 with adverse action appeal rights, and dismissed the appeal for lack of jurisdiction.  The judge stated that, because the appellant's termination is not within the Board’s jurisdiction, the Board does not have jurisdiction to hear her claims of discrimination. 

Holdings:  Although the Board denied the appellant's petition for review and affirmed the initial decision, it stated that it was issuing an Opinion and Order to explain how the recent Supreme Court decision in Kloeckner v. Solis, No. 11-184 (U.S. Dec. 10, 2012), affects the Board's practice of providing appellants with notice of their review rights in final Board decisions:

1.  5 U.S.C. 7702(a)(1) provides that when an individual "(A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by [specified discrimination laws or regulations promulgated under those laws], the Board shall . . . decide both the issue of discrimination and the appealable action . . . ."  Appeals to the Board meeting these two conditions are known as "mixed case appeals."  

2.  The appellant in a mixed case may seek review of the Board's final decision before the EEOC; she may also institute an action in federal district court, where the Board's findings and conclusions on issues other than discrimination are subject to review and the discrimination claim proceeds de novo.  By contrast, the appellant in a non-mixed case is limited to review of the Board's final decision before the U.S. Court of Appeals for the Federal Circuit.  

3.  In the past, the Board has provided notice of mixed-case appeal rights in its final decision only when the Board actually decided a claim of discrimination.  In all other cases -- including one in which a claim of discrimination was raised but not decided -- the Board has provided notice of non-mixed appeal rights.  

4.  In Kloeckner, the Supreme Court considered a case over which the Board had jurisdiction (a removal action), in which the appellant raised a claim of discrimination covered by section 7702, but in which the Board dismissed the appeal on procedural grounds (as untimely refiled) without considering the merits of the discrimination claim.  The Court held that review of the Board's final decision was properly in federal district court, not the Court of Appeals for the Federal Circuit, because this was a "mixed-case" appeal covered by section 7702.  

5.  The Board stated that, in light of the Kloeckner decision, it would now provide notice of mixed-case appeal rights in all cases in which the appellant was affected by an action that he or she may appeal to the Board and alleges prohibited discrimination, regardless of whether the Board decides the claim of discrimination.  Mixed-case appeal rights are not appropriate here, however.  Because the appellant was not subjected to a personnel action that is directly appealable to the Board, this is not a mixed-case appeal, and notice of appeal rights to the Court of Appeals for the Federal Circuit is appropriate.

     Vice Chairman Wagner issued a separate opinion disagreeing with the majority's determination to provide the appellant notice of appeal rights only to the Court of Appeals for the Federal Circuit.  She stated that, in Kloeckner, the Court strongly rejected the scheme of bifurcated judicial review of Board decisions in cases involving discrimination claims based on a merits-procedural distinction, but that the Court did not address the more problematic question as to whether an appellant would be entitled to district court review when an appeal, such as this one, involving allegations of discrimination, is dismissed for lack of jurisdiction.  After discussing arguments for and against entitlement to district court review, she stated that, until such time as the Board is given an authoritative resolution of this issue by a reviewing court, "the best course of action is to notify appellants who have alleged discrimination and whose appeals are dismissed for lack of jurisdiction that, in light of Kloeckner, they may also have a right to judicial review in district court."

Appellant:  Jill Braxton
Agency:  Department of the Treasury
Decision Number:  2013 MSPB 8
Docket Number:  CH-0752-11-0318-I-1
Issuance Date:  January 30, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Timeliness - New Appeal

    The appellant petitioned for review of an initial decision that dismissed her appeal as untimely filed.  The appellant was removed from her position effective October 17, 2010, and she was served with the notice of removal on October 15, 2010.  She did not file her Board appeal until February 8, 2011, 84 days after the date for timely filing.  The appellant alleged that the delay in filing resulted from mental illness.  Finding that the appellant failed to establish good cause for her untimely filing, the administrative judge noted that the appellant's medical evidence did not indicate that the appellant was medically unable to file her appeal prior to the deadline.  

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for a timeliness hearing:

1.  If an appellant can establish a factual dispute as to whether there was good cause for her untimely filing, and she requested a hearing, she is entitled to a timeliness hearing.

2.  The Board concluded that it could not determine from the evidence of record whether the appellant's mental condition affected her ability to timely file her appeal.  It found that the appellant's submissions were sufficient to establish a factual dispute as to this matter, and remanded the case to the regional office for a timeliness hearing.  

Appellant:  Regina Hairston
Agency:  Department of Defense
Decision Number:  2013 MSPB 9
Docket Numbers:  CH-0752-11-0827-I-1 and CH-0752-10-0040-I-2
Issuance Date:  January 30, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Suspension; Removal

Timeliness - New Appeal
Constitutional Issues - Due Process - Security Clearance Determinations

    The agency petitioned for review of an initial decision that reversed its actions indefinitely suspending and then removing the appellant from employment.  The appellant was an Accounting Technician with the Defense Finance and Accounting Service.  Both adverse actions were based on determinations by the agency's Clearance Appeals Board suspending and subsequently revoking the appellant's access to classified information an/or occupancy of a sensitive position, which was a requirement for her position.  Although the administrative judge found that the removal penalty was untimely filed, he found that the appellant established good cause for the delay in filing.  The judge reversed both actions on the ground that the agency violated the appellant's constitutional due process rights, in that the appellant was afforded no opportunity to address evidence and issues raised for the first time in the agency's final decision.  

Holdings:  In the removal appeal, the Board reversed the administrative judge's finding that the appellant established good cause for her untimely filed appeal and dismissed that appeal as untimely filed.  The Board affirmed as modified the initial decision in the indefinite suspension appeal.

1.  The removal appeal was untimely filed without good cause shown for the delay.

a.  The delay in filing was lengthy -- almost 18 months -- and the appellant was represented by her union.

b.  The appellant's or her representative's mistaken belief that her appeal of her indefinite suspension encompassed an appeal of her removal provides no basis for waiving the filing deadline.  

2.  The agency violated the appellant's due process rights in the indefinite suspension action.

a.  In its recent decisions in McGriff v. Department of the Navy, 118 M.S.P.R. 89 (2012), and Diehl v. Department of the Army, 118 M.S.P.R. 344 (2012), the Board found that providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the deciding official on the indefinite suspension should have authority to take or recommend agency action based on the reply.  The deciding official must have the authority to change the outcome of the action or the agency runs the risk of an erroneous deprivation of the employee's property interest in employment such that it will have violated her right to constitutional due process. 

b.  Here, the deciding official stated in her decision letter and testified that she had no authority to cancel or mitigate the appellant's indefinite suspension notwithstanding any response made by the appellant to the proposed indefinite suspension.  


The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Murveit v. Internal Revenue Service, No. 2012-3068 (Jan. 28, 2013) (MSPB Docket No. SF-0752-10-0681-I-1) (affirming per Rule 36 the Board's decision, which affirmed Murveit's removal)

U.S. Merit Systems Protection Board | Case Reports