Lisa M. Mendez v. Department of Justice ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA M. MENDEZ, DOCKET NUMBER
Appellant, DC-315H-14-0914-I-1
v.
DEPARTMENT OF JUSTICE, DATE: January 29, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Joseph E. Benitez, Coral Gables, Florida, for the appellant.
Katherine Meng, and Melissa Anderson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the 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 interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Document #: 1132338 v 1
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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 filed an appeal in which she alleged that she involuntarily
resigned from her position with the agency’s Bureau of Alcohol, Tobacco, and
Firearms during her probationary period. Initial Appeal File (IAF), Tab 2 at 9-10.
She contended that the agency discriminated against her on the basis of her
marital status. Id. at 2-5. Among numerous other claims, she also contended
that the agency failed to explain to her the authority under which it hired her. Id.
at 22. She did not request a hearing. In addition to the usual acknowledgment
order, the administrative judge issued a show cause order in which she set forth
the elements and burdens of establishing Board jurisdiction over the appeal and
ordered the appellant to file evidence and argument in that regard. IAF, Tabs 3-4.
The appellant did not respond.
¶3 The agency responded that it appointed the appellant, effective March 23,
2014, to a temporary excepted-service appointment, not to exceed 3 years, 120
days, the entirety of which was a probationary period for training and
development purposes. IAF, Tab 7 at 6, 15-16. The agency further asserted that
the appellant had no previous federal service and was not preference eligible. Id.
at 6, 17. Thus, the agency contended, the appellant was not an employee with
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appeal rights pursuant to 5 U.S.C. § 7511(a)(1) at the time she resigned, and it
moved to dismiss the appeal for lack of jurisdiction. Id. at 7-8, 13-14.
¶4 In the initial decision, the administrative judge found that the appellant
failed to meet her burden to make a nonfrivolous allegation of facts that, if
proven, could establish her right to a hearing over the issue of Board jurisdiction
over her appeal. IAF, Tab 8, Initial Decision (ID). Specifically, the
administrative judge found that the appellant failed to establish that she was an
“employee” with appeal rights under 5 U.S.C. § 7511(a)(1). ID. As noted above,
she dismissed the appeal for lack of jurisdiction. ID.¶5 In her petition for review, the appellant contends, among other things, that
the initial decision contained “erroneous findings of fact which were not in line
with the testimony and evidence presented during the hearing.” Petition for
Review (PFR) File, Tab 1 at 2. But, the record does not reflect that the
administrative judge held a hearing. ID. The appellant also claims that she has
material evidence that she was not allowed to submit before the record closed.
PFR File, Tab 1 at 2. But, the record instead reflects that the appellant failed to
reply to the administrative judge’s jurisdictional order and did not attempt to
submit anything but her initial appeal before the record closed below. She
reiterates the arguments she submitted in her appeal, including her allegation of
marital status discrimination. Id. at 15, 29. The appellant also claims that the
agency wrongfully denied documents and records to her, but she does not assert
that she sought discovery under the Board’s regulations or that she sought to
compel the production of those items pursuant to such a request. Id. at 16; see
IAF, Tab 3 at 3; see also 5 C.F.R. §§ 1201.71-1201.85. The agency responds in
opposition. PFR File, Tab 3.
¶6 The Board’s jurisdiction is not plenary. 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(a)(2)(i). Although the appellant indicated in her initial appeal that she
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served in the competitive service, IAF, Tab 2 at 9, the evidence instead indicates
that she served in the excepted service, IAF, Tab 7 at 15-16. A probationary
employee in the excepted service who has not completed her probationary period
has no statutory right of appeal to the Board. E.g., Ramirez-Evans v. Department
of Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010).
¶7 Moreover, excepted service employees lack the regulatory grounds for
appeal of probationary terminations, such as discrimination on the basis of
partisan political reasons or marital status, that are available to competitive
service employees under 5 C.F.R. § 315.806. Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 13 (2009) (holding that 5 C.F.R. § 315.806 applies
only to individuals in the competitive service). Thus, the appellant’s unsupported
allegations of marital status discrimination are not relevant. Furthermore, the
appellant’s arguments regarding the merits of her involuntary resignation claim
are irrelevant to the issue of the Board’s jurisdiction over her appeal and, thus,
they fail to show that the administrative judge committed an error of law in
dismissing this appeal for lack of jurisdiction. See Rivera v. Department of
Homeland Security, 116 M.S.P.R. 429, ¶ 13 (2011) (finding the appellant’s merits
arguments to be immaterial to the jurisdictional issue). Lastly, we note that, prior
to her appointment, the appellant signed a document which explicitly set forth the
term-limited nature of her excepted service appointment, IAF, Tab 7 at 21, and
she provides no authority to indicate that her unsupported allegation that the
agency failed to explain the hiring authority it used in appointing her is somehow
appealable to the Board.
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:
5
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.