Diana Dwyer v. Department of Health and Human Services

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

DIANA DWYER, DOCKET NUMBER

Appellant, AT-1221-25-1680-W-1 v.

DEPARTMENT OF HEALTH AND DATE: August 14, 2026 HUMAN SERVICES,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1 Yolanda Jacobs , Hampton, Georgia, for the appellant.

Douglas C. Elliott , Esquire, and Jennifer Smith , Washington, D.C., for the agency.

BEFORE Henry J. Kerner, Vice Chairman James J. Woodruff II, Member REMAND ORDER

The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) 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.

BACKGROUND

Effective March 10, 2024, the agency appointed the appellant to a GS-13 Health Communication Specialist position in the excepted service, subject to a 2-year probationary period. Initial Appeal File (IAF), Tab 2 at 2-4. By letter dated February 14, 2025, the agency notified the appellant that it would terminate her employment effective March 14, 2025. IAF, Tab 1 at 10, Tab 2 at 2-3. On April 21, 2025, the Office of Special Counsel (OSC) notified her by email that it was unable to pursue her complaint wherein she alleged that the agency committed prohibited personnel practices when it unlawfully terminated her during her probationary period. IAF, Tab 2 at 5. On April 23, 2025, the appellant filed the instant Board appeal challenging her termination. IAF, Tab 1.

The administrative judge issued a jurisdictional order construing the appellant’s case as an IRA appeal. IAF, Tab 4. The administrative judge informed the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered her to submit evidence and argument establishing Board jurisdiction over her appeal. Id. The appellant did not respond. The agency filed its response and moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6. Subsequently, the administrative judge issued a show cause order to provide the appellant another opportunity to submit evidence or argument establishing why her IRA appeal should not be dismissed for lack of jurisdiction. IAF, Tab 7. In response, the appellant submitted several documents related to her termination but did not address the Board’s jurisdiction over her IRA appeal. IAF, Tab 8.

After the record on jurisdiction closed, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction without holding the appellant’s requested hearing. IAF, Tab 9, Initial Decision (ID) at 1, 5. He found that the appellant exhausted her administrative remedies before OSC regarding her termination. ID at 3. Nevertheless, he concluded that she failed to nonfrivolously allege that she made protected disclosure or engaged in protected activity that contributed to her termination. ID at 3-5. Consequently, he dismissed the appeal for lack of jurisdiction.

The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant asserts that she did not allege whistleblower retaliation in connection with her termination. PFR File, Tab 1 at 6. Specifically, she asserts that she filed a prohibited personnel practices (PPPs) complaint with OSC and intended to challenge her unlawful termination during her probationary period before the Board. Id. After reviewing her submissions, we find the appellant’s assertion is supported by the record. 2 Id.; IAF, Tab 1 at 3, 10-11, Tab 2 at 5.

We remand this appeal for a determination of whether the Board has jurisdiction over her appeal challenging her termination during her probationary period.

The Board’s jurisdiction 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). As a nonpreference eligible in the excepted service, the appellant has a statutory right to appeal a termination if she qualifies as an “employee” within the meaning of 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of Homeland Security, 118 M.S.P.R. 154, ¶ 5 (2012). Generally, an appellant has the burden of proving by preponderant evidence that the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). However, an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).

Based on our review of the record, we find that the appellant did not receive explicit information regarding the jurisdictional standard to show that the Board has jurisdiction over her appeal as a probationary employee in the excepted service. The administrative judge’s orders, the initial decision, and the agency’s submissions did not provide the appellant with proper notice of the jurisdictional requirements for establishing her status as an “employee.” See Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009); see also Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007) (explaining that an administrative judge’s failure to provide an appellant with proper notice can be cured if the agency’s pleadings or the initial decision puts the appellant on notice of what he must do to establish jurisdiction). We therefore find that this case should be remanded to allow the appellant an opportunity to establish that she is an “employee” as defined by chapter 75.

We observe that, even if the appellant were to establish that she is an “employee” and has a statutory right to appeal her termination, there is a question of timeliness. An appeal of an agency action must generally be filed no later than 30 days after the effective date of the action being appealed, or 30 days after the date of the receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). Because the appellant did not file the instant appeal until April 23, 2025, it appears that her appeal was untimely filed by 40 days. Nevertheless, before the administrative judge dismisses the appeal as untimely, the appellant should receive explicit notice of her burden on the timeliness issue and an opportunity to demonstrate that her appeal was timely or that there was good cause for any delay. See Wright v. Department of Transportation, 99 M.S.P.R. 112, ¶ 12 (2005).

On remand, the administrative judge shall notify the appellant of her burden to establish Board jurisdiction over her appeal as a probationary employee in the excepted service and the particular timeliness issue in her case. The administrative judge should allow the parties to present additional evidence and argument relating to those issues. If, on remand, the administrative judge finds that the appellant has not established that she is an “employee” with chapter 75 appeal rights, he shall issue a remand initial decision dismissing the appeal for lack of jurisdiction. If, however, he finds that the appellant is an “employee,” the administrative judge shall determine whether the appeal was timely filed or, if not, whether good cause existed for the appellant’s filing delay. If the administrative judge finds that the appeal is timely, or that there is good cause for any delay, the administrative judge shall adjudicate the appeal on the merits.

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.