Reina A. Tejada v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REINA A. TEJADA, DOCKET NUMBER
Appellant, NY-315H-15-0261-I-1
v.
DEPARTMENT OF VETERANS DATE: January 8, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence E. Tomscha, New York, New York, for the appellant.
Daniel Cummings, Syracuse, New York, 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. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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, 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 agency appointed the appellant to the position of Medical Supply
Technician on July 13, 2014, subject to a 1-year probationary period. Initial
Appeal File (IAF), Tab 5, Subtabs 4I-4J. Less than a year later, the agency
terminated the appellant from service, citing performance deficiencies and
damage to agency equipment. IAF, Tab 5, Subtabs 4A-4C. The termination
notice informed the appellant of her limited Board appeal rights, based upon her
status as a probationary employee. IAF, Tab 5, Subtab 4B.
¶3 The appellant filed the instant appeal, challenging her termination. IAF,
Tab 1. The administrative judge explained the Board’s limited jurisdiction and
directed the appellant to meet her jurisdictional burden of proof. IAF, Tab 3.
The appellant responded, alleging that the agency’s termination letter granted her
jurisdiction and asserting that the agency violated her due process rights. IAF,
Tab 4 at 2 (referencing IAF, Tab 5, Subtab 4B; 5 C.F.R. § 315.805). In turn, the
agency moved to dismiss the appeal. IAF, Tab 5 at 1-2.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID). The
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appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
¶5 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). The appellant bears the
burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing only if
she makes a nonfrivolous allegation of Board jurisdiction, i.e., an allegation of
fact that, if proven, could establish a prima facie case that the Board has
jurisdiction over the matter at issue. Francis v. Department of the Air
Force, 120 M.S.P.R. 138, ¶ 14 (2013).
¶6 It is undisputed that, as a probationary employee in the competitive service
with less than 1 year of current continuous service, the appellant has no statutory
right of appeal to the Board under 5 U.S.C. chapter 75. IAF, Tab 5, Subtabs 4A,
4H, 4I; see 5 U.S.C. § 7511(a)(1)(A); Harris v. Department of the
Navy, 99 M.S.P.R. 355, ¶ 6 (2005). Moreover, she did not allege that her
termination was based upon either partisan political reasons or marital status,
which would give rise to a regulatory right of appeal under 5 C.F.R. § 315.806(b).
Instead, the appellant’s petition reasserts that the agency granted her the right to
appeal to the Board, and suggests that her termination was not in accordance with
the procedural requirements of 5 C.F.R. § 315.805. PFR File, Tab 1 at 2.
¶7 We first note that the appellant appears to have misunderstood the agency’s
termination notice. See IAF, Tab 4 at 2; PFR File, Tab 1 at 2. Although that
notice provided information concerning the appeal rights of a probationary
employee, generally, it did not grant the appellant any right to appeal. IAF,
Tab 5, Subtab 4B; see generally Waldrop v. U.S. Postal
Service, 72 M.S.P.R. 12, 15 (1996) (recognizing that an agency cannot confer
jurisdiction where it does not otherwise exist).
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¶8 We next note that the appellant’s reliance on 5 C.F.R. § 315.805 is
misplaced. Pursuant to 5 C.F.R. § 315.805, an agency must follow certain
prescribed procedures when it proposes terminating a probationary employee “for
reasons based in whole or in part on conditions arising before [her] appointment.”
Pursuant to 5 C.F.R. § 315.806(c), “a probationer whose termination is subject to
§ 315.805 may appeal [to the Board] on the ground that [her] termination was not
effected in accordance with the procedural requirements of that section.”
¶9 Although the appellant has alleged that the agency failed to follow the
procedures listed in 5 C.F.R. § 315.805, she has not alleged that her termination
was based in whole or in part on conditions arising before her appointment and,
therefore, subject to those procedures. IAF, Tab 4; PFR File, Tab 1; cf. Blount v.
Department of the Treasury, 109 M.S.P.R. 174, ¶¶ 2, 5 (2008) (finding that the
procedural requirements of 5 C.F.R. § 315.805 applied if the agency terminated a
probationary employee based, in part, on her failure to timely file tax returns
several years before her appointment); Munson v. Department of
Justice, 55 M.S.P.R. 246, 249-50 (1992) (finding that the procedural requirements
of 5 C.F.R. § 315.805 applied where the agency terminated a probationary
employee for making false statements in her employment interview, prior to her
appointment). Instead, the appellant has acknowledged that the agency
terminated her for post-appointment reasons—allegations of deficient
performance and damage to agency equipment. PFR File, Tab 1 at 1-2; IAF, Tab
5, Subtab 4B. Accordingly, the appellant has failed to nonfrivolously allege that
the Board has jurisdiction over her probationary termination.
¶10 Because the appellant has failed to meet her jurisdictional burden, we will
not address the appellant’s remaining arguments concerning the merits of her
termination. PFR File, Tab 1 at 1-2; see Schmittling v. Department of the
Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (recognizing that a decision on the
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merits would be a nullity in the absence of Board jurisdiction). We affirm the
administrative judge’s dismissal of the appeal for lack of jurisdiction. 2
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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 U.S. 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 U.S. 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
2
The initial decision did not discuss the Board’s jurisdiction under 5 C.F.R.
§§ 315.805, 315.806(c), and why they did not apply in this case. See ID. Nevertheless,
the appellant received proper notice of her jurisdictional burden, including notice
pertaining to 5 C.F.R. §§ 315.805, 315.806(c), and she failed to meet that burden. IAF,
Tab 3 at 2-4, Tab 4; PFR File, Tab 1. Therefore, the fact that the initial decision failed
to specifically address 5 C.F.R. §§ 315.805, 315.806(c) is of no consequence. See
Hunter v. Department of Justice, 73 M.S.P.R. 290, 293-94 (1997); Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
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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 U.S. 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
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.