Roslyn E Oliver v. Social Security Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSLYN ELEASE OLIVER, DOCKET NUMBER
Appellant, PH-315H-20-0299-I-1
v.
SOCIAL SECURITY DATE: July 23, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Roslyn Elease Oliver , Philadelphia, Pennsylvania, pro se.
Edward C. Tompsett , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
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 in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous 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. 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).
BACKGROUND
Effective September 15, 2019, the agency appointed the appellant to the
career-conditional position of Legal Administrative Specialist in the competitive
service, subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 5
at 54-55. The appellant had previously held a Claims Clerk position with the
agency, but had resigned effective March 16, 2001. Id. at 62. On or around April
2, 2020, the agency issued to the appellant a notice of proposed termination for
failure to disclose information required in the OF-306, Declaration for Federal
Employment (OF-306). Id. at 47-53. The proposal clearly informed the appellant
that she had the right to review the materials relied upon in support of the
proposed termination and to reply to the proposed action in writing. Id. at 52.
The appellant submitted a written reply. Id. at 20-22. Less than 1 year after the
appellant’s initial appointment, effective May 13, 2020, the agency terminated
her appointment. Id. at 11-19. The termination letter stated that the decision was
“based in whole or in part on conditions arising before [her] appointment.” Id.
at 12.
3
The appellant filed an appeal and requested a hearing. IAF, Tab 1 at 2.
She checked the box indicating that she was challenging her “[t]ermination during
probationary or initial service period.” Id. at 4. The appellant asserted that she
had “simply made a mistake” during the application process and “would NEVER
intentionally omit application information.” Id. In the acknowledgment order,
the administrative judge informed the appellant that the Board may not have
jurisdiction over her appeal and apprised her of the regulatory right to appeal for
probationers in the competitive service and the requirements for meeting the
definition of an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights.
IAF, Tab 2 at 2-5. Neither party responded to the acknowledgment order. The
administrative judge issued a subsequent jurisdiction order, which required the
agency to file a jurisdictional response, provided the appellant with the
opportunity to respond to that response, and informed the parties of the date on
which the record on jurisdiction would close. IAF, Tab 3 at 1-2.
The agency submitted a narrative response and evidence file. IAF, Tab 5.
The appellant did not file any response or pleading addressing the matter of
jurisdiction. The administrative judge issued a subsequent order informing the
appellant that it appeared that she had been terminated at least in part for reasons
arising before the date of her appointment and that the agency was therefore
required to provide her with notice and an opportunity to respond to her proposed
termination. IAF, Tab 8 at 1. He stated that it appeared from the evidence in the
record that the agency had done so and noted that the appellant had not made
allegations that her termination was due to marital status or partisan political
reasons. Id. The administrative judge ordered the appellant to show cause why
her appeal should not be dismissed for lack of jurisdiction. Id. at 1-2. The
appellant did not file a response to the order to show cause.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal because the appellant failed to make a
nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF,
4
Tab 9, Initial Decision (ID) at 1, 4. The administrative judge found that, because
the agency terminated the appellant during a probationary period in part for
pre-appointment reason, it was required to follow the procedural requirements set
forth at 5 C.F.R. § 315.805, but that the appellant had not alleged that the agency
failed to comply with these requirements and that the agency had proven that it
provided the requisite notice, opportunity to respond, and decision. ID at 4.
Furthermore, he found that the appellant had not alleged that she was terminated
due to marital status or partisan political reasons. Id. Finally, the administrative
judge found that the appellant had not presented any prior Federal service that
could be tacked on to either enable her to meet the definition of an “employee” or
complete her probationary period. Id.The appellant has filed a petition for review arguing that she “completed
[her] probationary period years ago” and asserting that she had not been afforded
her proper rights on appeal. Petition for Review (PFR) File, Tab 1 at 3. The
agency has filed a response arguing that the appellant’s prior service could not be
tacked on to her most recent service for purposes of her probationary period
because she had an 18-year gap in her employment with the agency. PFR File,
Tab 3 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
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). An appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). To establish Board jurisdiction under 5 U.S.C. chapter 75,
an individual must, among other things, show that she satisfied one of the
definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive
service, such as the appellant, this means that she either must not be serving a
5
probationary or trial period under an initial appointment, or have completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). A probationary
employee in the competitive service has a limited regulatory right of appeal. See
5 C.F.R. § 315.806. If such a person is terminated for reasons that arose after her
appointment, as was the appellant, she may appeal to the Board only if he raises a
nonfrivolous claim that her termination was based on partisan political reasons or
marital status. 5 C.F.R. § 315.806(b). Under 5 C.F.R. § 315.806(c), a
probationary employee whose termination was based in whole or in part on
conditions arising before her appointment may appeal her termination to the
Board on the ground that it was not effected in accordance with the procedural
requirements set forth in 5 C.F.R. § 315.805. LeMaster v. Department of
Veterans Affairs, 123 M.S.P.R. 453, ¶ 7 (2016). Those procedural requirements
include advance notice of the termination, an opportunity to respond, and
consideration of the response. Id., ¶ 13; 5 C.F.R. § 315.805(a)-(c). In a
probationary termination appeal arising under section 315.806(c), the only issue
before the Board is whether the agency’s failure to follow the procedures set forth
in section 315.805 was harmful error and the Board does not address the merits of
the agency’s termination. LeMaster, 123 M.S.P.R. 453, ¶ 7.
An appellant is entitled to a jurisdictional hearing if she presents
nonfrivolous allegations 2 of Board jurisdiction. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling her to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
6
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Id.On petition for review, the appellant does not challenge the administrative
judge’s finding that she failed to make a nonfrivolous allegation that there was a
regulatory basis for her appeal under the provisions set forth in 5 C.F.R. part 315,
subpart H. PFR File, Tab 1 at 3; ID at 3-4. Rather, she seemingly challenges the
administrative judge’s finding that she failed to make a nonfrivolous allegation
that she was an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights.
PFR File, Tab 1 at 3; ID at 4. The appellant argues for the first time on review
that she was not a probationary employee but rather “a full time employee for
11 years” with Board appeal rights. PFR File, Tab 1 at 3. The appellant did not
submit any supporting evidence of her prior service with the agency or cite to any
of the documentary evidence submitted by the agency during the pendency of the
appeal. Id.The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has
made no such showing, and she did not submit any supporting evidence of her
prior service with the agency. PFR File, Tab 1 at 3. She offers no explanation
why she did not make this argument during the pendency of her appeal or indeed
respond at all to the administrative judge’s numerous jurisdictional orders. Id.The agency’s documentary submissions identify prior service ending on March
16, 2001, more than 18 years prior to the appointment at issue in the present
appeal. IAF, Tab 5 at 54-55, 62. The appellant does not explain on review if the
alleged 11-year service with the agency to which she refers is this service
identified by the agency or more recent Federal service. PFR File, Tab 1 at 3. In
contrast to the appellant’s argument that she was “not allowed to give
documentary evidence or to be represented by a representative,” PFR File, Tab 1
7
at 3, the administrative judge provided her with three separate opportunities
during the pendency of the appeal to provide evidence and argument regarding
the jurisdictional issue, IAF, Tabs 2-3, 8. Moreover, the administrative judge
provided the appellant with detailed instructions how to file a designation of
representative in the acknowledgment order. IAF, Tab 2 at 5-6.
Therefore, even if we were to consider her new argument, the appellant has
not made a nonfrivolous allegation that she meets the definition of an “employee”
in the competitive service under 5 U.S.C. § 7511(a)(1)(A) or that the Board has
jurisdiction over her appeal. See Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980) (stating that the Board will generally not grant a petition for
review based on “new” evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision). She has provided
no supporting evidence or argument for her conclusory statement that she was not
a probationary employee and has set forth no facts demonstrating that she had
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. PFR File, Tab 1 at 3; see 5 U.S.C.
§ 7511(a)(1)(A)(i), (ii). We also agree with the administrative judge that the
appellant has not alleged that the agency failed to follow the procedural
requirements set forth in 5 C.F.R. § 315.805 or that she was terminated due to her
marital status or for partisan political reasons, and therefore, has not made a
nonfrivolous allegation that she has a regulatory right to appeal under 5 C.F.R.
§ 315.806. PFR File, Tab 1 at 3; ID at 3-4.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
9
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.