Evans v. Merit Systems Protection Board
669 F. App'x 986
Fed. Cir.2016Background
- Michelle Evans was a GS-7 Consumer Safety Technician at FDA; duties were changed in 2015 and she became sole employee answering door/phone.
- She received a written reprimand (Sept 2015) and a seven-day suspension (Dec 7–13, 2015) for alleged unprofessional conduct; the suspension warned of possible removal for further offenses.
- Agency proposed removal in Jan 2016 for multiple incidents after her suspension; Evans remained employed while she filed an appeal to the Merit Systems Protection Board (MSPB) in Feb 2016.
- On appeal Evans checked boxes for "Involuntary Resignation" and "Involuntary Retirement" and alleged age/color discrimination, retaliation, and hostile work environment.
- An MSPB Administrative Judge dismissed the appeal for lack of jurisdiction, finding no appealable adverse action (Evans had not resigned/retired and suspension was for seven days); Evans did not seek Board review and appealed to this court.
- After the initial decision, the agency issued a removal effective April 2, 2016; Evans resigned April 1 and filed a separate MSPB appeal contesting that removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over Evans's Feb 2016 appeal | Evans contends the change in duties, reprimand, seven-day suspension, and proposed removal (plus discrimination/retaliation) support Board jurisdiction | Agency/Board contend none of the actions were appealable adverse actions under statute/regulation at the time (suspension <15 days; no removal, no resignation/retirement) | Held: No jurisdiction. The actions alleged were not appealable adverse actions and Evans had not resigned/retired when filing. |
| Whether allegations of prohibited personnel practices create independent jurisdiction | Evans argues discrimination/retaliation claims give Board jurisdiction (mixed case) | Board argues mixed-case jurisdiction attaches only to otherwise appealable agency actions | Held: Alleged discrimination does not confer jurisdiction absent an appealable agency action. |
Key Cases Cited
- Dela Rosa v. Office of Pers. Mgmt., 583 F.3d 762 (Fed. Cir. 2009) (standard for appellate review of MSPB decisions)
- Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328 (Fed. Cir. 2008) (jurisdiction reviewed de novo; factual findings for substantial evidence)
- Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999) (MSPB jurisdiction limited to matters statutorily delegated)
- Cruz v. Dep’t of Navy, 934 F.2d 1240 (Fed. Cir. 1991) (mixed-case jurisdiction requires an otherwise appealable agency action)