UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHYE L. WILBORN, DOCKET NUMBER
Appellant, AT-0752-22-0242-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 16, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shye L. Wilborn , Marietta, Georgia, pro se.
Kevin Burton , North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed her involuntary resignation appeal for lack of jurisdiction.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On March 8, 2020, the appellant filed an appeal with the Board, alleging
that she was forced to resign from her GS-11 Public Affairs Specialist position
with the Department of the Army, Georgia National Guard, due to unlawful
discrimination. Initial Appeal File (IAF), Tab 1; Petition for Review (PFR) File,
Tab 5 at 9. In her initial appeal, the appellant stated that her employer was the
Department of Defense. IAF, Tab 1 at 1. However, the appellant attached a
document to her appeal, entitled Second Amended Complaint for Damages, 2
identifying her agency as the “Georgia Department of Defense, [] a state agency.”
Id. at 4, 6.
The administrative judge issued a jurisdictional order, notifying the
appellant that the Board may not have jurisdiction over her involuntary
resignation, setting forth the applicable legal standard for establishing
jurisdiction, and providing her with an opportunity to present evidence and
argument establishing a nonfrivolous allegation of jurisdiction. IAF, Tab 3.
She then issued a second jurisdictional order, explaining that there was also
a question as to whether the appellant was an employee who could exercise Board
appeal rights as defined by 5 U.S.C. § 7511 and providing her with an opportunity
to present evidence and argument establishing the same. IAF, Tab 5. The
appellant’s representative responded to the orders, stating, among other things,
that the appellant was an employee of the “Department of Defense, [] a [F]ederal
agency” and attaching several documents in which the agency referred to the
appellant as a Title 5 employee. IAF, Tab 7 at 6, 42, 49.
Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID). Specifically, the administrative judge found that the appellant did
not establish that she was an employee under 5 U.S.C. § 7511 because
2
The document appeared to be a draft of a filing prepared by an attorney as part of
the appellant’s Equal Employment Opportunity Commission case. IAF, Tab 1 at 4-25.
3
she represented that she was an employee of the Georgia Department of Defense,
and she had provided no support for her later assertion that she was hired by the
Department of the Army as a federal civilian technician. 3 ID at 2. Furthermore,
the administrative judge found that, to the extent that the appellant suggested
she was a National Guard technician, the National Guard Technician Act
expressly excluded National Guard technicians from the coverage of 5 U.S.C.
§ 7511. ID at 2-3. Accordingly, the administrative judge found that the appellant
had failed to establish that she was an employee under 5 U.S.C. § 7511 and
dismissed her appeal for lack of jurisdiction. ID at 3-4.
The appellant filed a petition for review, asserting that she was a Title 5
Federal civilian employee with Board appeal rights. PFR File, Tab 5 at 4-6.
The appellant also attached several documents to her petition for review,
including a copy of the Standard Form 50 (SF-50) documenting her resignation,
as well as a February 2018 memorandum stating that the appellant was being
converted from a Title 32 excepted service dual status technician to a Title 5
excepted service National Guard employee. Id. at 8-9. The agency did not
respond to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is an employee under 5 U.S.C. § 7511(a)(1)(C).
The administrative judge erred in finding that the appellant was not
an employee under 5 U.S.C. § 7511. The Board’s jurisdiction is not plenary; it is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
1985). Only individuals meeting the definition of an “employee” set forth in
5 U.S.C. § 7511 have statutory rights to appeal an adverse action to the Board.
5 U.S.C. §§ 7511(a)(1), 7513(d). The appellant has the burden of proving that the
3
Although the appellant listed the Department of the Army as the agency in the caption
of her jurisdictional response, she identified the Department of Defense as her former
employing agency in the contents of her response. IAF, Tab 7 at 4, 6.
4
Board has personal jurisdiction over her appeal by preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
The administrative judge erred in finding that the appellant was not a
Title 5 employee. ID at 2-3. While, at first, the appellant’s representative
appears to have mistakenly identified the agency as the “Georgia Department of
Defense, [] a state agency,” she corrected this error in her response to the
administrative judge’s jurisdictional orders by clarifying that the agency was the
“Department of Defense, [] a [F]ederal agency.” Compare IAF, Tab 1 at 6, with
Tab 7 at 6. The appellant also attached several documents to her jurisdictional
response proving that she was a Title 5 employee, including a letter from the
agency’s Office of the State Judge Advocate stating that the appellant was a
“Title 5 civilian in the Georgia National Guard.” IAF, Tab 7 at 42-43. The
appellant also provided an email from the same individual, informing an Equal
Employment Opportunity Commission administrative judge that the appellant had
Board appeal rights. Id. at 49. Therefore, the documents submitted on review,
i.e., the SF-50 establishing that the appellant’s resignation was taken under the
authority of 5 C.F.R. § 715.202 and the February 2018 memorandum stating that
the appellant’s position was converted to a Title 5 excepted service position,
merely confirm that the appellant was a Title 5 employee. PFR File, Tab 5 at 8-9.
In conclusion, we find that the appellant was an employee under 5 U.S.C.
§ 7511(a)(1)(C) because she was a Title 5 excepted service National Guard
employee for more than 2 years, and thus, she is entitled to Board appeal rights
from any adverse action taken under 5 U.S.C. § 7513(d). PFR File, Tab 5 at 8-9;
IAF, Tab 7 at 6-7. Accordingly, we remand this matter to the administrative
judge.
Instructions on remand
There appears to be an unresolved issue of timeliness, as the appellant
resigned effective December 26, 2021, but filed her appeal on March 8, 2022.
PFR File, Tab 5 at 9; IAF, Tab 1. On remand, we direct the administrative judge
5
to provide the appellant with the appropriate notice of her burden of proof on
timeliness and provide the parties with an opportunity to produce evidence and
argument on the same. Recognizing that the issues of timeliness and jurisdiction
are often inextricably intertwined in a case such as this, i.e., an involuntary
resignation appeal, the administrative judge shall make a finding as to whether
the appellant was subject to an appealable adverse action. Petric v. Office of
Personnel Management, 108 M.S.P.R. 342, ¶ 6 (2008) (explaining that the issues
of jurisdiction and timeliness were inextricably intertwined in a constructive
removal case because the resolution of the timeliness issue depends on whether
the appellant is subject to an appealable action). If the appellant was subject to
an appealable adverse action, the administrative judge shall then make a finding
on the issue of timeliness.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.