Patricia Ann Crandall v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICIA ANN CRANDALL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1373
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3443-18-0312-I-1.
______________________
Decided: November 14, 2024
______________________
PATRICIA ANN CRANDALL, Antelope, CA, pro se.
CONSTANCE E. TRAVANTY, Office of the General Counsel,
United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, STOLL, and CUNNINGHAM, Circuit Judges.
Case: 24-1373 Document: 24 Page: 1 Filed: 11/14/2024

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CRANDALL v. MSPB 2
PER CURIAM.
Patricia Ann Crandall appeals from a final decision of
the Merit Systems Protection Board (“the Board”)
dismissing Crandall’s administrative appeal for lack of
jurisdiction. Crandall v. Dep’t of Def., No. SF-3443-18-
0312-I-1, 2023 WL 8707094 (M.S.P.B. Dec. 15, 2023)
(“Final Order”), R.A. 1–8; Crandall v. Dep’t of Def., No. SF-
3443-18-0312-I-1, 2018 WL 2307171 (M.S.P.B. May 18,
2018) (“Initial Decision”), R.A. 9–23.1
For the following reasons, we affirm.
BACKGROUND
For over 28 years, Crandall was employed with the
Army & Air Force Exchange Service (“the AAFES”), a
nonappropriated fund instrumentality (“NAFI”)2 operating
under the Department of Defense (“the agency”). See
Initial Decision, R.A. 9–10. The AAFES terminated
Crandall on December 17, 2017, based on allegations of
misconduct. Id., R.A. 10. Crandall filed an appeal at the
Board on March 1, 2018, asserting that she had been
wrongfully terminated in part due to prior complaints she
had raised regarding the store manager and work
environment. Id.; see also R.A. 74–93 (Crandall’s Initial
MSPB Appeal Submission).
1 “R.A.” refers to the appendix filed with
Respondent’s brief.
2 See Taylor v. U.S., 303 F.3d 1357, 1358–59 (Fed.
Cir. 2002) (“As a NAFI, AAFES’s monies do not come from
congressional appropriations but rather primarily from
[its] own activities, services, and product sales. Hence, the
government does not assume AAFES’s obligations in the
manner that it assumes the obligations of appropriated
funds agencies.” (alteration in original) (internal quotation
marks and citations omitted)).
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CRANDALL v. MSPB 3
On March 8, 2018, the Board issued an
Acknowledgement Order notifying Crandall that the Board
might lack jurisdiction over her appeal. Initial Decision,
R.A. 10; see also R.A. 53–73 (Administrative Order).
Specifically, the order noted that the Board may not have
jurisdiction over the appeal because it appeared that
Crandall was a NAFI employee under 5 U.S.C. § 2105(c).
Under that statute, such an employee “is deemed not an
employee for the purpose of [ ] laws administered by the
Office of Personnel Management.” 5 U.S.C. § 2105(c). And
because the adverse action provisions of Title 5 are laws
administered by the Office of Personnel Management, it
appeared that Crandall did not have a right to appeal an
adverse action under 5 U.S.C. § 7513(d). R.A. 54; see Clark
v. Merit Sys. Prot. Bd., 361 F.3d 647, 650 (Fed. Cir. 2004)
(“adverse action provisions of Title 5 are laws administered
by the Office of Personnel Management for purposes of 5
U.S.C. § 2105(c)”).
Crandall’s subsequent pleadings did not dispute the
potential lack of jurisdiction or provide any “material
tending to show by preponderant evidence that the agency
subjected her to an action falling within the Board’s
appellate jurisdiction.” Initial Decision, R.A. 14.
Accordingly, on May 18, 2018, the Administrative Judge
(“AJ”) issued the Board’s Initial Decision dismissing
Crandall’s appeal for lack of jurisdiction. Id. On June 12,
2018, Crandall filed a petition for review by the full Board.
Final Order, at *1. The Board denied the petition,
explaining that “the [AJ] correctly found that [Crandall]
was an employee of a [NAFI], and thus lacked appeal rights
under chapter 75 and was not covered by the whistleblower
protections in 5 U.S.C. § 2302(b).” Id. The Board’s Initial
Decision therefore became its Final Order on December 15,
2023. Id.
Crandall appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b).
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CRANDALL v. MSPB 4
DISCUSSION
We review the Board’s jurisdictional determinations de
novo. Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320, 1325
(Fed. Cir. 2017). The Board is a tribunal with limited
jurisdiction, “only permitted to hear matters as granted by
law, rule, or regulation.” Jones v. Merit Sys. Prot. Bd.,
98 F.4th 1376, 1380–81 (Fed. Cir. 2024) (citing Maddox v.
Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985)); see
also 5 U.S.C. § 7701(a). Crandall, as the petitioner, has the
burden of establishing the Board’s jurisdiction by a
preponderance of the evidence. Campion v. Merit Sys. Prot.
Bd., 326 F.3d 1210, 1212–13 (Fed. Cir. 2003).
A federal employee subject to an adverse employment
action is generally entitled to an appeal to the Board. See
5 U.S.C. § 7513(d). An employee of a NAFI, however, is
statutorily deemed “not an employee” for the purpose of
laws administered by OPM. Id. § 2105(c). Because the
adverse action provisions of chapter 75 are administered
by OPM, an employee of a NAFI therefore has no right to
appeal such an action to the Board. Clark, 361 F.3d at 650–
51. A NAFI employee also has no appeal rights under 5
U.S.C. § 2302(b)(8)—the whistleblower protection
provision. See id., 361 F.3d at 651 (“The language of
[§§ 1214(a)(3), 1221(a)] makes them applicable to
‘employees’ and does not modify the definition of
‘employees’ as set forth in 5 U.S.C. § 2105.”).
Crandall submits on appeal that she was the subject of
“wrongful termination” and that despite filing a grievance
after she was given her final separation for cause, such
grievance “fell on deaf ears, and was not even considered.”
See ECF No. 22 at 1–2 (memorandum in lieu of oral
argument). There is, however, no dispute that Crandall
was, at all times relevant to this appeal, a NAFI employee
of the AAFES. Indeed, Crandall did not dispute her
employment type before the Board and only argues on
appeal that she has told the “truth” and that her
“statements package was not taken seriously.” Appellant’s
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CRANDALL v. MSPB 5
Br. 2–3. There is similarly no dispute that employees of a
NAFI are not entitled to an appeal to the Board under 5
U.S.C. § 7513(d). Because Crandall does not contest that
she was an employee of a NAFI at any time relevant to her
claim, she has not met her burden of establishing that the
Board had jurisdiction over her claim for wrongful
termination.
To the extent that the Crandall’s claim can be viewed
as one for retaliation arising from whistleblower activities,
the Board again correctly concluded that it lacked
jurisdiction over her claim. As we held in Clark, “an
employee serving in an NAF[I] position has no right of
appeal to the Board for alleged violations of the
Whistleblower Protection Act.” Clark, 361 F.3d at 651.
We acknowledge Crandall’s more than 28 years of
employment with the AAFES and her allegations that she
was subjected to unfair treatment during her employment.
But even if her allegations were to have merit, we are
nevertheless compelled to affirm the Board’s determination
that it lacked the authority to review her claims as a
matter of law. As the Board explained, “the record did not
evince any [ ] apparent basis for Board jurisdiction.” Initial
Decision, R.A. 14. Put simply, because Crandall was an
employee of AAFES, and AAFES employees are not the
type of employees that are entitled to an appeal to the
Board, the Board lacked the authority to evaluate her
claims.
CONCLUSION
We have considered Crandall’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
conclude that the Board did not err in holding that it lacked
jurisdiction over Crandall’s appeal. Accordingly, the
Board’s decision is affirmed.
AFFIRMED
COSTS
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CRANDALL v. MSPB 6
No costs.
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