Avrail T. Clark v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AVRAIL T. CLARK, DOCKET NUMBER
Appellant, AT-315H-16-0167-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: September 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ronnie Hubbard, Jackson, Mississippi, for the appellant.
Joshua N. Rose, Esquire, and Valerie J. Neris, Washington, D.C., 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 for lack of jurisdiction her appeal of her probationary termination
from her competitive-service position of Food Inspector. Generally, we grant
petitions such as this one only when: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
findings of material fact; the initial 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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On July 26, 2015, the appellant received a career-conditional appointment
to the competitive-service position of Food Inspector, subject to the satisfactory
completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 8
at 39. About 4 months later, on November 20, 2015, the agency terminated her
appointment during the probationary period based on her misuse and abuse of a
Government credit card. IAF, Tab 1 at 2, Tab 8 at 20-22. Specifically, the
agency alleged that the appellant made charges on her Government credit card
while not in an approved travel status, received unauthorized cash disbursements,
and received notice that her card was suspended due to a 60-day past due balance.
IAF, Tab 8 at 20‑21.
¶3 She appealed her termination and alleged harmful error. IAF, Tab 1 at 1-2.
She requested a hearing and designated a representative. Id. at 1, 5. The
administrative judge advised her that, as a probationary employee, the Board
might not have jurisdiction over her termination. IAF, Tab 3 at 2. The
3
administrative judge ordered the appellant to file evidence or argument
addressing the jurisdictional issue. Id. at 4‑5. The appellant did not respond, and
the agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 8
at 6-16.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1. The
administrative judge found that the appellant had no prior Federal service and was
terminated less than 1 year into her initial probationary period and, thus, she had
no statutory right to appeal an adverse action under 5 U.S.C. chapter 75. ID
at 3-4 (citing 5 U.S.C. § 7511(a)(1)). The administrative judge further found that
the appellant failed to nonfrivolously allege that her probationary termination was
based on preappointment reasons, partisan political discrimination, or marital
status discrimination, and thus the Board lacks jurisdiction pursuant to 5 C.F.R.
§ 315.806. ID at 4‑5. Finally, he found that the Board lacks jurisdiction over
any claims of harmful error absent an otherwise appealable action. Id.¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
¶6 On review, the appellant does not contest the administrative judge’s
jurisdictional findings, but she reiterates her argument that the agency engaged in
harmful error by issuing her a Government credit card before she was employed
by the agency and prior to giving her training on the use of the card. Id. at 4.
She further claims that she did not charge anything to the credit card after she
received training on August 21, 2015. Id. In support of her argument, the
appellant submits a list of instructions for credit card use and a job-site
orientation checklist, which she signed on August 21, 2015. Id. at 7‑9.
¶7 We find that the appellant’s arguments on review do not provide a reason to
disturb the initial decision. The appellant bears the burden of proving by
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preponderant evidence 2 that the Board has jurisdiction over her
appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, if an appellant makes a
nonfrivolous allegation 3 of Board jurisdiction over an appeal, she is entitled to a
jurisdictional hearing. See Garcia v. Department of Homeland Security, 437
F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). 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). By
statute, the Board has jurisdiction over a Federal employee’s removal from
service. 5 U.S.C. §§ 7512, 7513(d). As relevant here, an “employee” is an
individual in the competitive service who is not serving a probationary or trial
period under an initial appointment or who has completed 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less. See 5 U.S.C. § 7511(a)(1)(A); McCormick v. Department of the Air
Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002). An individual who does not meet
this definition of “employee” may have a limited regulatory right to appeal if she
alleges that her termination from a competitive-service position was based on
partisan political reasons or marital status discrimination, or that her termination
was based in whole or in part on conditions arising before her appointment and
was not effected in accordance with certain procedural requirements. 5 C.F.R.
§§ 315.806(b)-(c), 315.805.
¶8 Here, the appellant’s arguments on review do not relate to the dispositive
issue of jurisdiction in this case and therefore are not relevant. We find no reason
to disturb the administrative judge’s explained findings that the appellant failed
to make a nonfrivolous allegation that she is an “employee” with chapter 75
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
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appeal rights or has a regulatory right to appeal for the reasons described
in 5 C.F.R. § 315.806. ID at 3-5. Because the Board lacks jurisdiction over this
probationary termination appeal, the Board lacks independent jurisdiction to
adjudicate the appellant’s harmful error claims. ID at 4; see Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that the Board lacks jurisdiction
over an appellant’s harmful error claim absent an appealable underlying action).
Further, we find that the documents the appellant submits with her petition for
review are not relevant to the issue of the Board’s jurisdiction over her appeal
and, therefore, are not material to the outcome of this appeal. See Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115.
¶9 Accordingly, we find no reason to disturb the administrative judge’s finding
that the Board lacks jurisdiction over the appeal, and we affirm 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:
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 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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.