UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STEPHEN PRESCOTT DURHAM,

Appellant,

v.

TENNESSEE VALLEY AUTHORITY,

Agency.

DOCKET NUMBER

AT-0752-14-0521-I-1

DATE: March 25, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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.
3

¶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 this 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 meaning 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 dismissed 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 existence 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 his 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 

distinguishable because the appellant did not establish that he was preference-eligible 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. Id.
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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board