Michael O. Mahler v. Department of Defense
Background
- Michael O. Mahler was a contract nurse practitioner employed by Magnificus Corporation at Walter Reed; Magnificus terminated him in March 2015.
- Mahler filed an EEO complaint raising discrimination, hostile work environment, and reprisal claims; the agency issued a Final Agency Decision (FAD) dismissing the complaint and stated it was a "mixed case," explaining Board appeal procedures.
- Mahler filed an MSPB appeal challenging his termination, an alleged negative suitability determination, and related allegations (false accusations, ineligibility for rehire, denial of later positions).
- The administrative judge ordered Mahler to make a nonfrivolous jurisdictional showing; Mahler failed to timely make such a showing and the agency moved to dismiss for lack of jurisdiction.
- The AJ dismissed the appeal without a hearing, finding Mahler was a contractor (not an "employee" under 5 U.S.C. § 7511) so chapter 75 jurisdiction did not apply, and that he did not nonfrivolously allege a negative suitability determination under 5 C.F.R. part 731.
- The Board denied Mahler’s petition for review, affirmed the dismissal, and explained the Board lacks jurisdiction over contractor-employee adverse actions and over unrelated tort/defamation or labor/FMLA claims absent an otherwise appealable action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB has jurisdiction over Mahler’s termination as an adverse action under 5 U.S.C. chapter 75 | Mahler contends he was wrongfully terminated and deprived of due process | Agency argues Mahler was a private contractor, not an "employee" under § 7511, so chapter 75 does not apply | Held: No jurisdiction — Mahler was a contractor, not an "employee," so chapter 75 appeal unavailable |
| Whether Mahler alleged a negative suitability determination under 5 C.F.R. part 731 | Mahler alleges a negative suitability determination and being labeled ineligible for rehire harmed future employment | Agency argues Mahler was neither a federal applicant nor appointee, so part 731 does not apply | Held: No nonfrivolous allegation of applicability of part 731; jurisdiction not established |
| Whether allegations of slander/defamation and denial of subsequent positions are reviewable by MSPB | Mahler claims agency or contractor provided slanderous statements causing denial of jobs | Agency contends these are tort/employment interference claims outside Board jurisdiction | Held: Dismissed — Board lacks jurisdiction over defamation/tort claims absent an otherwise appealable action |
| Whether Mahler was entitled to a jurisdictional hearing / due process before dismissal | Mahler asserts summary dismissal deprived him of due process and sought a hearing | Agency maintains Mahler failed to make nonfrivolous jurisdictional allegations required to trigger a hearing | Held: No error — a jurisdictional hearing is only required if a nonfrivolous allegation is made; none was shown |
Key Cases Cited
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (nonfrivolous allegation standard for entitlement to jurisdictional hearing)
- Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985) (standards for jurisdictional hearings before the MSPB)
- Staats v. U.S. Postal Service, 99 F.3d 1120 (Fed. Cir. 1996) (definition of a nonfrivolous allegation of jurisdiction)
- Thompson v. Merit Systems Protection Board, 421 F.3d 1336 (Fed. Cir. 2005) (contractor status precludes chapter 75 appeal rights)
- Paul v. Department of Agriculture, 66 M.S.P.R. 643 (1995) (MSPB lacks jurisdiction over tortious acts such as defamation)