Nydia Y. Pacheco v. Department of Defense ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NYDIA Y. PACHECO, DOCKET NUMBER
Appellant, AT-315H-13-0378-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 19, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Nydia Y. Pacheco, Ocean Springs, Mississippi, pro se.
Kenya M. Gregory, Esquire, Fort Belvoir, Virginia, 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 her appeal challenging her termination from an Auditor position 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
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
BACKGROUND
¶2 The administrative judge found, among other things, that the agency
appointed the appellant to the career-conditional position of Auditor in the
competitive service on May 21, 2012; this position was subject to completion of a
1-year probationary period; and, the agency terminated the appellant’s
employment effective February 8, 2013, during her probationary period. Initial
Appeal File, Tab 16, Initial Decision (ID) at 3. The judge rejected the appellant’s
contention that she was not required to serve a probationary period because she
had previously completed a probationary period with the Internal Revenue
Service (IRS) and was appointed to the Auditor position by reinstatement under
5 C.F.R. § 315.401. Such appointments are exempt from the 1-year probationary
period if the individual previously satisfied that requirement. 5 C.F.R.
§ 315.201(c)(4). The judge found that the appellant would have been eligible for
such an appointment but, after reviewing the evidence of record, concluded that
she had not been so appointed. ID at 2-3. The judge further found that the
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appellant was not an “employee” within the meaning of 5 U.S.C. § 7511 and that
she had not alleged any basis for review under 5 C.F.R. § 315.806. ID at 4-5.
ANALYSIS
¶3 On review, the appellant reiterates her contention that she should not have
been required to complete a probationary period because she should be deemed to
have received a reinstatement appointment under 5 C.F.R. § 315.401 in light of
her previous completion of a probationary period while employed by the IRS.
Petition for Review (PFR) File, Tab 3. We agree with the judge’s assessment
that, “while it appeared that the appellant might have been eligible for a
reinstatement appointment under 5 C.F.R. § 315.401, it did not appear from the
evidence in the record . . . that she was actually appointed under that legal
authority.” ID at 2. This regulation is a permissive one rather than a description
of an entitlement, providing that “an agency may appoint by reinstatement to a
competitive service position a person who previously was employed under career
or career-conditional appointment (or equivalent).” There is simply no evidence
that the agency in fact appointed the appellant to the Auditor position under this
authority. To the contrary, the Standard Form 50 memorializing the appellant’s
appointment expressly stated that she was required to complete a 1-year
probationary period. IAF, Tab 11 at 18.
¶4 The appellant reiterates the argument she made below that the agency
should have been bound by language contained in the vacancy announcement for
the Auditor position: “Probationary Period: You will be required to serve an
initial probationary period of 1 year if one has not already been completed.” PFR
File, Tab 3 at 6; IAF, Tab 11 at 5, 14. We disagree. As the Board observed early
in its existence, “federal employment is not governed by contract principles . . . .
Appointment, not contract law, is the central concept.” Bartel v. Federal
Aviation Administration, 14 M.S.P.R. 24, 35-36 (1982). Even if the language in
the vacancy announcement could be viewed as an “offer” that the appellant
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“accepted,” the terms of her employment are governed by the documents effecting
her appointment. As discussed above, those documents required the appellant to
complete a 1-year probationary period.
¶5 The appellant asserts that she alleged that her termination was reprisal for
whistleblowing. PFR File, Tab 3 at 8. As indicated by the administrative judge,
the appellant “vaguely mentioned ‘Abuse and Whistleblower Laws’ within the
narrative portion of her initial appeal.” ID at 5. We see no other indication in the
record that the appellant made an allegation of retaliation for whistleblowing.
Even if she had so alleged, such a claim could only be reached in a case such as
this, where the Board lacks jurisdiction as an “otherwise appealable action,” in an
individual right of action (IRA) appeal filed under 5 U.S.C. § 1221. See 5 C.F.R.
§ 1209.2. If the appellant believes that her termination was reprisal for
whistleblowing, then she may file an IRA appeal if she first seeks corrective
action from the Office of Special Counsel, as required by 5 U.S.C. § 1214(a)(3).
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).
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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
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.