Joylyn A. Bishop v. General Services Administration ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYLYN A. BISHOP, DOCKET NUMBER
Appellant, DC-0752-15-0121-I-1
v.
GENERAL SERVICES DATE: May 8, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Joylyn A. Bishop, North Bethesda, Maryland, pro se.
Daniel D’Isidoro, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction because she was not an
employee with a right of appeal to the Board. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant was appointed on March 26, 2012, to the position of Student
Trainee (Management Analysis) in the excepted service. Initial Appeal File
(IAF), Tab 6 at 16. On January 2, 2014, the agency notified the appellant it was
terminating her from her position effective January 3, 2014. Id. at 12, 14. The
appellant initiated a Board appeal on November 3, 2014. IAF, Tab 1 at 1. The
agency filed a motion to dismiss in which it asserted that: (1) the Board lacked
jurisdiction over the appeal because the appellant was not an employee with
appeal rights; and (2) the appeal was untimely filed. IAF, Tab 6 at 8-9. The
administrative judge issued an order for the appellant to show that the Board has
jurisdiction over her appeal. IAF, Tab 7. The appellant responded to the order
and also filed a motion requesting that the administrative judge order the agency
to continue paying her while her appeal was pending. IAF, Tab s 8-10. The
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1. The administrative judge
found that, because the appellant was not a preference-eligible employee, she was
required to serve a 2-year probationary or trial period in the excepted service. ID
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at 2. The administrative judge also found that, because the appellant was still
serving her probationary or trial period, she did not have the right to bring an
appeal to the Board. ID at 2-3. The administrative judge did not address the
agency’s untimeliness argument because the Board lacked jurisdiction over the
appeal. ID at 3.
¶3 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The appellant argues that her motion to continue to pay her
wages during these proceedings was still pending before the Board. Id. at 4. The
agency has filed a response.
¶4 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). Only an “employee” as
defined under 5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an
adverse action such as a removal. Ramirez-Evans v. Department of Veterans
Affairs, 113 M.S.P.R. 297, ¶ 9 (2010); see 5 U.S.C. §§ 7511(a)(1), 7512(1),
7513(d). A nonpreference-eligible individual in the excepted service is an
“employee” within the meaning of 5 U.S.C. § 7511 only if she: (1) is not serving
a probationary or trial period under an initial appointment pending conversion to
the competitive service; or (2) has completed 2 years of current continuous
service in the same or similar positions in an executive agency under other than a
temporary appointment limited to 2 years or less. 5 U.S.C.
§ 7511(a)(1)(C)(i)-(ii).
¶5 Here, it is undisputed that the appellant was not a preference-eligible
employee and that her position was in the excepted service. IAF, Tab 1 at 2,
Tab 6 at 12. The administrative judge advised the appellant how to show she was
an employee under these circumstances. IAF, Tab 7. The appellant does not
dispute that she had less than 2 years of federal service at the time of her
termination. PFR File, Tab 1; IAF, Tab 1 at 2, Tab 6 at 12. Thus, the appellant
does not satisfy section 7511(a)(1)(C)(ii). In addition, section 7511(a)(1)(C)(i)
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does not apply because the appellant stated on her appeal form that she was
serving a probationary or trial period at the time of her termination, and there is
no indication she had an initial appointment pending conversion to the
competitive service. IAF, Tab 1 at 2; see Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
Accordingly, the appellant is not an “employee” who may appeal to the Board
under 5 U.S.C. chapter 75. 2 See Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
¶6 The appellant alleged, moreover, that she had been harassed and that her
termination was in reprisal for her making an equal employment opportunity
complaint. IAF, Tab 1 at 4, 10. However, because the Board lacks jurisdiction
over the appellant’s appeal, the Board also lacks jurisdiction over her
discrimination claims. See Rivera v. Department of Homeland Security,
116 M.S.P.R. 429, ¶ 16 (2011) (finding that the Board lacked jurisdiction over the
appellant’s age discrimination and due process claims in light of its lack of
jurisdiction over the underlying termination); see also Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980) (holding that prohibited personnel practices under
5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,
681 F.2d 867, 871 73 (D.C. Cir. 1982). Finally, the appellant cites no law, rule,
or regulation that authorizes the Board to grant her motion for pay continuation;
therefore, the Board must deny her motion because it lacks jurisdiction over her
appeal. See Harris v. U.S. Postal Service, 89 M.S.P.R. 208, ¶ 4 (2001) (finding
that the Board cannot order remedies in the absence of jurisdiction over the
underlying personnel action).
2
In light of his finding that the Board lacks jurisdiction over the appellant’s claims, the
administrative judge appropriately found that she need not reach the issue of timeliness.
ID at 3; see Dean v. U.S. Postal Service, 115 M.S.P.R. 56, ¶ 13 n.5 (2010) (finding that
because the appellant had failed to prove jurisdiction, the Board need not reach the
issue of timeliness).
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.