UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FRANCESKA WIGGINS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-315H-18-0522-I-1

DATE: February 1, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael Boone, Dayton, Ohio, for the appellant.

Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant, a preference eligible, has filed a petition for review of the

initial decision in which the administrative judge found that she was not an

“employee” under 5 U.S.C. § 7511(a)(1)(B), divesting the Board of jurisdiction

over the appeal of her excepted service trial period termination. Initial Appeal

File (IAF), Tab 8, Initial Decision (ID); Petition for Review (PFR) File, Tab 1.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Generally, we grant petitions such as this one only in the following

circumstances: 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 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. 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). 

Upon review, we discern no error in the administrative judge’s

determination to dismiss this appeal for lack of jurisdiction without holding a

hearing. An appellant bears the burden of proving Board jurisdiction by

preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). There is no statutory

requirement that the Board hold a hearing on the threshold issue of jurisdiction

when an appellant fails to raise a nonfrivolous allegation relating to jurisdiction

which cannot be resolved by the documentary record. Miller v. U.S. Postal

Service, 46 M.S.P.R. 407, 409-10 (1990), aff’d, 956 F.2d 1172 (Fed. Cir. 1992)

(Table). The Board has jurisdiction over appeals of adverse actions filed by an

“employee” as defined in 5 U.S.C. § 7511(a)(1). 5 U.S.C. §§ 7512, 7513(d); see

Anderson v. General Services Administration, 56 M.S.P.R. 316, 318, aff’d,

12 F.3d 1069 (Fed. Cir. 1993). An “employee” under 5 U.S.C. § 7511(a)(1)(B)(i)

is defined as “a preference eligible in the excepted service who has completed

1 year of current continuous service in the same or similar positions . . . in an

Executive agency . . . .” Prior Federal service can be credited towards the

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completion of a trial period in the excepted service where: (1) the prior service

was performed in the same agency; (2) it was performed in the same line of

work; and (3) it was completed with no more than one break in service of less

than 30 days. McCrary v. Department of the Army, 103 M.S.P.R. 266, ¶ 12

(2006). 

In this case, the agency terminated the appellant, a preference eligible,

from her excepted service position as a Medical Support Assistant for

postappointment reasons prior to her completion of 1 year of current continuous

service in the same or similar positons. IAF, Tab 7 at 5, 24-26. The appellant’s

previous Federal service in this same position with the agency does not count

towards the completion of her trial period, as she had more than one break in

service of more than 30 days prior to her appointment to the position to which she

was terminated.2 Id. at 27, 33-43. Thus, the appellant does not meet the

definition of an “employee” under 5 U.S.C. § 7511(a)(1)(B) and is not entitled to

appeal her trial period termination to the Board. See Goodman v. U.S. Postal

Service, 36 M.S.P.R. 127, 130 (1988) (holding that because the appellant did not

show that he was an “employee” under 5 U.S.C. § 7511(a)(1)(B), the

administrative judge properly dismissed his appeal for lack of Board jurisdiction).

The undisputed record supports the conclusion drawn by the administrative judge

in the initial decision. See Hardy v. Merit Systems Protection Board, 13 F.3d

1571, 1575 (Fed. Cir. 1994) (finding that the documentary evidence was ample to

resolve the jurisdictional issue without a hearing); Clede v. Department of the

Air Force, 72 M.S.P.R. 279, 286 (1996) (stating that “[t]he uncontradicted

evidence of record simply does not furnish a nonfrivolous showing of jurisdiction

2

 The record shows that the appellant previously occupied a Medical Support Assistant

position with the agency from 2007 to 2008, and held other Federal positions, without a

break in service, until 2010. IAF, Tab 7 at 27, 29-33. The appellant then had an over

4-year break in service until she was appointed to another Federal position in 2014. Id.

at 27, 34-36. The appellant held that position for less than a year and then had a break

in service of approximately 20 months before receiving a Federal appointment for less

than 1 week. Id. at 27, 34-41. The appellant was then appointed to the position at issue

in this appeal 3 months later. Id. at 5, 27. 

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entitling the appellant to a hearing”), aff'd, 113 F.3d 1257 (Fed. Cir. 1997)

(Table). 

In her petition for review, the appellant argues that the administrative judge

erred by not holding a telephonic status conference. PFR File, Tab 1 at 3. We

see no indication that it was improper for the administrative judge to dismiss this

appeal prior to convening a telephonic status conference. 3 See Miller v.

Department of Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (outlining that an

administrative judge has wide discretion to control the proceedings). The

appellant also contests the agency’s reasoning for her termination and alleges that

the agency committed harmful errors in the termination process. PFR File, Tab 1

at 3-4. Due to the Board’s lack of jurisdiction over the appellant’s appeal, we are

without the authority to address the merits of her termination and any harmful

procedural error affirmative defense. See Penna v. U.S. Postal Service,

118 M.S.P.R. 355, ¶ 13 (2012) (holding that the Board lacks jurisdiction over a

claim of harmful procedural error absent an appealable underlying action). 

On review, the appellant argues that the administrative judge erred by not

providing her with the opportunity to respond to the agency’s filing on

jurisdiction. PFR File, Tab 1 at 3. An appellant must receive specific

information on what is necessary to establish an appealable jurisdictional issue.

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir.

1985). Any shortcoming in providing this notice and an opportunity to submit

argument and evidence on the matter can be cured if the initial decision puts the

appellant on notice of her burden to demonstrate jurisdiction, thus giving her a

chance to meet it on review. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41,

¶ 11 (2008). 

In the jurisdictional notice sent to the parties in this instant case, the

administrative judge referred to the appellant as holding a position in the

3

 There is no indication that the appellant contacted the administrative judge to request

a status conference. 

4
competitive service at the time of her termination and provided her the standard

for establishing jurisdiction applicable to individuals in the competitive service. 4

IAF, Tab 3. However, the appellant, a preference eligible, occupied a position in

the excepted service when terminated. IAF, Tab 7 at 5, 24. The definition of an

“employee” with Board appeal rights differs between an individual in the

competitive service and a preference eligible in the excepted service. 5 U.S.C.

§ 7511(a)(1). Notwithstanding, the initial decision contained the correct

standard, and the administrative judge assessed whether the appellant was an

“employee” with Board appeal rights accordingly. ID at 2-4. Therefore, the

appellant received notice through the initial decision of what she had to prove to

meet her jurisdictional burden, and she then set forth her argument and evidence

on review. PFR File, Tab 1. As outlined herein, the appellant failed to meet this

standard on review. 

NOTICE OF APPEAL RIGHTS5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

4

 The appellant did not respond to the jurisdictional notice issued by the administrative

judge prior to the initial decision. ID at 3.

5

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

5
Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the

U.S. Court of Appeals for the Federal Circuit, which must be received by the

court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

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were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

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Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues, then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of

appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

6

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

8
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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