UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHERINE PEREZ, DOCKET NUMBER
Appellant, AT-0754-15-0332-I-1
v.
DEPARTMENT OF VETERANS DATE: July 29, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher Young, Tampa, Florida, for the appellant.
Joy C. Vilardi-Rizzuto, Esquire, Tampa, Florida, 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 termination appeal 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 decision is based on an 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 February 9, 2014, the agency appointed the appellant, a
nonpreference eligible, to a GS-5 Nursing Assistant position at its Veterans
Affairs Medical Center in Tampa, Florida. Initial Appeal File (IAF), Tab 1 at 14.
The appellant’s appointment was made under 38 U.S.C. § 7401(3) and was in the
excepted service. Id. She was subject to a 1-year “Initial Probationary/Trial
Period.” Id. Effective February 6, 2015, the agency terminated the appellant for
improper conduct. Id. at 11-12.
¶3 The appellant timely filed a Board appeal challenging her termination. IAF,
Tab 1. The administrative judge issued an order informing her of her burden to
establish Board jurisdiction by showing that she met the definition of an
employee under 5 U.S.C. § 7511(a)(1). IAF, Tab 5. The appellant asserted that
she had completed her trial period and therefore met the definition of employee
under 5 U.S.C. § 7511 because she was terminated at the end of the work day on
Friday, February 6, 2015, before her trial period ended on the following Monday,
February 9, 2015. IAF, Tab 1 at 5, Tab 6 at 3-5. The agency contended that the
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appellant was terminated during her trial period because she was terminated at
11:41 a.m. on February 6, 2015, before the end of her tour of duty at 4:00 p.m.
IAF, Tab 4 at 6-9.
¶4 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID);
see IAF, Tab 6 at 5. Specifically, the administrative judge found that the
appellant did not qualify as an employee with Board appeal rights under 5 U.S.C.
§ 7511(a)(1)(C) because she had not completed 2 years of current continuous
service in the same or similar position in an executive agency under other than a
temporary appointment limited to 2 years or less. ID at 3-4.
¶5 The appellant has filed a petition for review in which she asserts that the
administrative judge improperly found that she was required to complete a 2-year
trial period to qualify as an employee. Petition for Review (PFR) File, Tab 1 at 2.
The appellant also reiterates her argument below that she is an employee because
she completed her 1-year trial period. Id. The agency has filed a response in
opposition to the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An appellant bears the burden of establishing Board jurisdiction by
preponderance of the evidence. Burgess v. Merit Systems Protection Board,
758 F.2d 641, 642-43 (Fed. Cir. 1985). Preponderance of the evidence is defined
by regulation as that degree of relevant evidence which 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. § 1201.56(c)(2).
¶7 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). It has jurisdiction over
disciplinary actions issued to individuals appointed under 38 U.S.C. § 7401(3),
such as the appellant, if they meet the definition of an employee under 5 U.S.C.
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§ 7511. See Carrow v. Merit Systems Protection Board, 564 F.3d 1359, 1364
(Fed. Cir. 2009); Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210,
¶¶ 8-10 (2009) (finding that the Board’s jurisdiction includes adverse actions
issued to employees appointed under section 7401(3)); 5 C.F.R. §§ 752.401(c)(8),
752.405(a) (listing agency employees appointed under section 7401(3) among
those individuals entitled to appeal adverse actions to the Board). Only an
“employee,” as defined under 5 U.S.C. chapter 75, subchapter II, can appeal to
the Board from an adverse action such as a removal. 2 Barrand, 112 M.S.P.R.
210, ¶ 8; see 5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d). A nonpreference-eligible
individual in the excepted service is an “employee” within the meaning of
5 U.S.C. § 7511 only if she: (1) is not serving a probationary or trial period
under an initial appointment pending conversion to the competitive service; or
(2) 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)(i)-(ii); see Barrand,
112 M.S.P.R. 210, ¶¶ 4, 10 (applying this provision to an excepted service
appointment made under 38 U.S.C. § 7401(3)). An individual may meet the
definition of employee under either of these two alternatives. Van Wersch v.
Department of Health & Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999).
Based on the foregoing, we find that the administrative judge properly determined
that the appellant is not an employee under subsection 7511(a)(1)(C)(ii) because
she had less than 2 years of Federal service when she was terminated. See ID
at 3-4.
2
The administrative judge also cited to 5 C.F.R. § 315.806 as a possible basis for Board
jurisdiction and informed the appellant that she may have limited appeal rights if she
alleged that her termination was due to discrimination based on partisan political
reasons or marital status. IAF, Tab 5 at 3-4 & n.1. This information was provided in
error, however, because 5 C.F.R. § 315.806 applies only to individuals in the
competitive service. Barrand, 112 M.S.P.R. 210, ¶ 13; see Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
5
¶8 However, the administrative judge did not expressly address the appellant’s
argument that she completed her trial period and thus was an employee under
subsection 7511(a)(1)(C)(i) because she was terminated at the end of her tour of
duty on the last scheduled workday before her anniversary date. IAF, Tab 1 at 5,
Tab 6 at 3-5. Any such error, however, does not provide a basis for reversal
because we find that the appellant was not an employee under this subsection
because she was not serving in an initial appointment pending conversion to the
competitive service. See Forest v. Merit Systems Protection Board, 47 F.3d 409,
411-12 (Fed. Cir. 1995) (an excepted service employee not serving in an initial
appointment pending conversion to the competitive service must have 2 years of
current continuous service to obtain adverse action appeal rights); see also
Panter, 22 M.S.P.R. at 282; IAF, Tab 1 at 14 (reflecting that the appellant was
appointed to the excepted service). Therefore, a determination regarding the
exact timing of the appellant’s removal is not necessary to dispose of this appeal,
and we decline to address the parties’ arguments on the issue of whether the
appellant was terminated before or after 1 year of service.
¶9 Accordingly, we conclude that the administrative judge properly found that
the appellant is not an employee within the meaning of 5 U.S.C. § 7511, and thus,
the Board lacks jurisdiction over her 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
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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
United States 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
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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.