Sheila D. Bowles v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHEILA D. BOWLES, DOCKET NUMBER
Appellant, CH-315H-16-0249-I-1
v.
DEPARTMENT OF VETERANS DATE: September 29, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Linda Rademaker, Swayzee, Indiana, for the appellant.
Eric M. Waage, Esquire, Indianapolis, Indiana, 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 appeal of her probationary termination for lack of Board
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an 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).
¶2 The appellant was a Licensed Practical Nurse (LPN), GS-0620-05, with the
Department of Veterans Affairs Health Care System in Marion, Indiana. Initial
Appeal File (IAF), Tab 4 at 8. She was appointed to her excepted-service
position pursuant to 38 U.S.C. § 7401(3) effective February 8, 2015, subject to a
1-year probationary period. Id. The agency terminated her effective
January 24, 2016, for “inability to perform the duties of an LPN independently at
a competent level.” IAF, Tab 4 at 9-10. She filed a timely Board appeal, alleging
that the agency improperly terminated her employment. IAF, Tab 1. The
administrative judge adjudicated the appeal on the written record because the
appellant failed to allege facts sufficient to merit a jurisdictional hearing, and she
dismissed the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at
1-3.
¶3 The appellant has filed a petition for review, wherein she alleged “that her
termination was not effected in accordance with the procedural requirements
of 5 [C.F.R. §] 315.805.” Petition for Review (PFR) File, Tab 1 at 3, 5. She
argues that the agency’s termination letter did not give her notice of the reasons
for her termination “with any specificity or detail.” Id. at 3; see 5 C.F.R.
3
§ 315.805(a). She asserts that she lacked advance notice of any inadequacies in
her performance or conduct. PFR File, Tab 1 at 3. She further argues that the
agency’s action was “an arbitrary violation” of 5 U.S.C. § 2301(b)(8)(A). 2 The
appellant additionally argues that the agency’s letter informing her of her
termination “did not mention [she] could appeal her termination to MSPB based
on improper procedure” under 5 C.F.R. §§ 315.805 and 315.806(c), and only
when her appeal was before the administrative judge, did she and her union
representative become fully aware of her appeal rights. PFR File, Tab 1 at 4-5.
Although some of the appellant’s arguments were not raised during the
proceeding before the administrative judge, we will nevertheless address these
issues. IAF, Tab 1 at 3; see Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980) (holding that 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).
¶4 The administrative judge correctly determined that this appeal is not within
our jurisdiction. 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 that her appeal falls within the Board’s jurisdiction. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board may exercise jurisdiction over a removal
appeal where the individual who is removed qualifies as an “employee” at the
time of her removal. McCormick v. Department of the Air Force, 307 F.3d 1339,
1341 (Fed. Cir. 2002). The applicable statute defines an “employee” as
an individual in the excepted service (other than a preference
eligible) –
2
This statute states in relevant part that “[e]mployees should be . . . protected against
arbitrary action, personal favoritism, or coercion for partisan political purposes.”
5 U.S.C. § 2301(b)(8)(A). However, the merit system principles, set forth in 5 U.S.C.
§ 2301(b), are not an independent basis for Board jurisdiction. D’Leo v. Department of
the Navy, 53 M.S.P.R. 44, 48 (1992).
4
(i) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service;
or
(ii) who 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). The appellant was hired pursuant to 38 U.S.C.
§ 7401(3) for an excepted-service position effective February 8, 2015. IAF,
Tab 4 at 8. She does not claim to be a preference eligible, nor does the record so
indicate. Id. She was serving a 1-year trial period when she was terminated. Id.
As a nonpreference eligible, she would have been required to complete 2 years of
current continuous service before attaining employee status and appeal
rights. 5 U.S.C. § 7511(a)(1)(C)(ii). She has not claimed to have completed 2
years of current continuous service.
¶5 When terminated, probationers in the competitive service have limited
regulatory appeal rights under the provisions set forth in 5 C.F.R. part 315H. The
appellant, however, was terminated from an excepted service position, and these
provisions do not apply to her. Ramirez-Evans v. Department of Veterans
Affairs, 113 M.S.P.R. 297, ¶ 10 (2010). Although the agency referenced 5 C.F.R.
§ 315.805 and regulatory appeal rights in the termination letter, IAF, Tab 4 at
10-11, the agency’s erroneous notice of appeal rights cannot expand the Board’s
jurisdiction, id. The appellant’s argument is thus unavailing, and the Board
affirms the initial decision.
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:
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 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.
6
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.