UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLA R. BLUMER, DOCKET NUMBER
Appellant, CH-315H-14-0579-I-1
v.
DEPARTMENT OF VETERANS DATE: October 30, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Carla R. Blumer, Oregon, Wisconsin, pro se.
Jack R. Jakubiak, Esquire, Milwaukee, Wisconsin, 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 probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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erroneous 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 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 Effective June 30, 2013, the agency appointed the appellant to a
career-conditional position in the competitive service as a GS-06 Medical
Reimbursement Technician, subject to her completion of a 1-year probationary
period. Initial Appeal File (IAF), Tab 4 at 7. By letter dated May 12, 2014, the
agency notified the appellant of its decision to terminate her effective May 16,
2014, for failure to meet her performance expectations. Id. at 8-10.
¶3 The appellant filed a Board appeal challenging her probationary termination
and requested a hearing. IAF, Tab 1. The appellant alleged that she did not
receive the required training to “obtain optimal productivity.” Id. at 5. In an
acknowledgement order, the administrative judge informed the appellant of the
limited Board appeal rights of probationary employees and ordered her to submit
evidence or argument to establish why the appeal should not be dismissed for lack
of a nonfrivolous allegation of jurisdiction. IAF, Tab 2. The appellant did not
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file a response to the order. The agency moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 4 at 4-6.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID). The
administrative judge found that the appellant did not have the right to appeal her
termination because, at the time of her termination, she was a probationary
employee with less than 1 year of current continuous service, and she did not
allege that the agency discriminated against her based on partisan political
reasons or marital status, or that her termination was based on pre-employment
matters. ID at 2-3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the petition for review.
ANALYSIS
The Board need not consider the appellant’s arguments regarding the merits of
her appeal.
¶6 In her petition for review, the appellant argues the merits of her case,
reiterating her argument from below that she did not receive proper training. PFR
File, Tab 1; IAF, Tab 1 at 5. However, these arguments are not relevant to the
issue currently before the Board—whether the Board has jurisdiction over this
appeal. See Fassett v. U.S. Postal Service, 76 M.S.P.R. 137, 139 (1997)
(arguments on review that address the merits of the agency’s removal action,
rather than the Board’s jurisdiction over the appeal, do not meet the criteria for
review).
The administrative judge correctly dismissed the appeal for lack of jurisdiction.
¶7 It is undisputed that, at the time of her termination, the appellant was a
probationary employee in the competitive service with less than 1 year of current
continuous service. IAF, Tab 1 at 1, 3, Tab 4 at 7. Consequently, the appellant
could only bring an appeal of her termination under limited circumstances.
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Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008); 5 C.F.R.
§§ 315.805, 315.806.
¶8 As the administrative judge explained, the appellant does not allege any of
these circumstances, such as that the agency discriminated against her based on
partisan political reasons or marital status, or that her termination was based on
pre-employment matters. ID at 3. Therefore, the administrative judge correctly
found that the Board does not have jurisdiction over this appeal.
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).
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
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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.