Muhleisen v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: July 16, 2025
• Docket: 24-2355
• Status: Unpublished

Opinion

Case: 24-2355 Document: 35 Page: 1 Filed: 07/16/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

SHIRLEY MUHLEISEN, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-2355 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-3443-20-0189-I-1. ______________________

Decided: July 16, 2025 ______________________

SHIRLEY MUHLEISEN, Marrero, LA, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, DYK, and CUNNINGHAM, Circuit Judges. Case: 24-2355 Document: 35 Page: 2 Filed: 07/16/2025

PER CURIAM. Shirley Muhleisen petitions for review of a final order of the Merit Systems Protection Board (“Board”), which af- firmed the initial decision dismissing Ms. Muhleisen’s ad- verse action appeal for lack of jurisdiction. Muhleisen v. Dep’t of Veterans Affs., No. DE-3443-20-0189-I-1, 2024 WL 4119194 (M.S.P.B. Sept. 6, 2024) (“Final Order”); Muhleisen v. Dep’t of Veterans Affs., No. DE-3443-20-0189- I-1, 2021 WL 1849295 (M.S.P.B. May 7, 2021) (App’x 8–20) (“Initial Decision”). 1 For the reasons discussed below, we affirm. I. BACKGROUND Ms. Muhleisen was employed as a registered nurse by the Department of Veterans Affairs (“VA”) from 1975 to 1999. Initial Decision at 2; App’x 49. Ms. Muhleisen was authorized and apparently elected to receive an early re- tirement effective September 1, 1999. Initial Decision at 2; App’x 53. However, in August 1999, Ms. Muhleisen in- formed Human Resources that she no longer wanted to re- tire on the authorized date. Initial Decision at 2; App’x 53. On September 16, 1999, Ms. Muhleisen formally rescinded her retirement and resigned her employment about two weeks later. Initial Decision at 2; App’x 53. Several months after her resignation, Ms. Muhleisen began receiv- ing retirement payments after she discovered that the VA processed her departure as an early retirement instead of a resignation. Initial Decision at 2; App’x 53. The monthly amount of retirement payments Ms. Muhleisen now re- ceives would be higher if the VA processed her departure

1 We refer to the appendix filed with the govern- ment’s informal response brief, ECF No. 24, as “App’x” throughout this opinion. Citations in this opinion are to the version included in the government’s appendix. For ex- ample, Initial Decision at 1 is found at App’x 8. Case: 24-2355 Document: 35 Page: 3 Filed: 07/16/2025

MUHLEISEN v. MSPB 3

in 1999 as a resignation rather than a retirement. Initial Decision at 2. On March 10, 2020, Ms. Muhleisen appealed to the Board, alleging the VA “[r]efus[ed] to honor a rescinded early retirement request,” “refus[ed] to honor a resignation request,” and “[p]rocess[ed] a resignation as an early retire- ment.” App’x 52. The administrative judge ordered Ms. Muhleisen to show cause why her involuntary retire- ment appeal should not be dismissed for lack of jurisdiction “to the extent she was employed as a title 38 registered nurse.” App’x 35; see also App’x 32 (describing Ms. Muhlei- sen’s appeal as “alleging a theory of involuntary retire- ment”). In response to the order to show cause, Ms. Muhleisen did not deny being a title 38 registered nurse or assert another legal basis for the Board’s jurisdic- tion. App’x 25–31. On May 7, 2021, the administrative judge dismissed Ms. Muhleisen’s appeal for lack of jurisdiction. Initial De- cision at 1. The administrative judge reasoned that “[a]s [Ms. Muhleisen is] a registered nurse employed by the [VA] under title 38, the Board lacks jurisdiction over an appeal which amounts to a challenge to an adverse action . . . .” Initial Decision at 5. Ms. Muhleisen subsequently sought review from the full Board, which denied her petition for review and affirmed the administrative judge’s initial deci- sion. Final Order at *1. The administrative judge’s initial decision became the Board’s final decision. Id. (citing 5 C.F.R. § 1201.113(b)). Ms. Muhleisen petitions for review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). II. DISCUSSION We must affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures Case: 24-2355 Document: 35 Page: 4 Filed: 07/16/2025

required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). “Under this standard, we review de- terminations of the Board concerning its jurisdiction de novo.” Parrott, 519 F.3d at 1334. On appeal, Ms. Muhleisen argues that the administra- tive judge’s reference to title 38 law is not applicable to re- duction-in-force apparently because this is not an adverse action appeal. Appellant’s Br. 2; see also id. at 10–11. In response, the government argues that Ms. Muhleisen did not have the right to appeal her allegedly involuntary re- tirement to the Board because her appeal is an adverse ac- tion appeal, and she was a registered nurse appointed under title 38. Appellee’s Br. 6–8. We agree with the gov- ernment. A registered nurse employed by the VA cannot appeal an involuntary retirement to the Board in an adverse ac- tion appeal. Involuntary retirement is typically a type of adverse action that is appealable to the Board. See 5 U.S.C. § 7513(d); see also Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001). “Section 7513, however, is applica- ble to only an ‘employee’ as defined in 5 U.S.C. § 7511, which does not apply to an individual ‘who holds a position within the Veterans Health Administration which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title.’” Biswas v. Dep’t of Veterans Affs., 127 F.4th 332, 344 (Fed. Cir. 2025) (quoting 5 U.S.C. § 7511(b)(10)). A regis- tered nurse is listed as a position under 38 U.S.C. § 7401(1) and is thus excluded from the competitive service and is not a position that can be appointed under 38 U.S.C. § 7401(3). See Khan v. United States, 201 F.3d 1375, 1380– 81 (Fed. Cir. 2000) (holding that a physician appointed un- der 38 U.S.C. § 7401(1) was excluded from the competitive service provision of title 38 and was therefore not entitled Case: 24-2355 Document: 35 Page: 5 Filed: 07/16/2025

MUHLEISEN v. MSPB 5

to appeal an involuntary retirement to the Board). In sum, Ms. Muhleisen was not an employee with rights to appeal her involuntary retirement to the Board as an adverse ac- tion. It is undisputed that Ms. Muhleisen was employed by the VA as a registered nurse under title 38 prior to her sep- aration. App’x 49; Appellee’s Br. 8. Therefore, the Board did not err in finding that it lacked jurisdiction over Ms. Muhleisen’s adverse action appeal. We have no occasion to determine whether Ms. Muhlei- sen has another path before the Office of Personnel Man- agement or another tribunal to challenge the amount of payment she receives. III. CONCLUSION We have considered Ms. Muhleisen’s remaining argu- ments and find them unpersuasive. For the above reasons, we affirm. AFFIRMED COSTS No costs.