The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARNE K. MITSKOG, DOCKET NUMBER
Appellant, DC-0752-14-0478-I-1
v.
FEDERAL ELECTION DATE: January 26, 2015
COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marne K. Mitskog, Arlington, Virginia, pro se.
Deborah M. Foresman, and Robert Kahn, Washington, D.C., 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 appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 The appellant was appointed to an excepted service position as an attorney
in the agency’s Office of General Counsel. Initial Appeal File (IAF), Tab 8 at 92.
The agency terminated the appellant approximately 19 months after her
appointment for conduct unbecoming a federal employee. 2 Id. at 35-36, 42-49.
The appellant appealed her termination. IAF, Tab 1. After affording the parties
an opportunity to address the matter of Board jurisdiction, IAF, Tab 3, the
administrative judge dismissed the appeal for lack of jurisdiction in an initial
decision, IAF, Tab 16, Initial Decision (ID). The administrative judge noted that
the appeal also appeared to be untimely but did not address this issue as he found
that the appellant had failed to establish jurisdiction. ID at 7 n.5.
2
We note that Article 46, Section 1 of the Labor Management Agreement between the
agency and the union specifies that agency employees will serve only a 1-year
probationary period. IAF, Tab 8 at 16. Accordingly, the agency stated in its narrative
response that, based upon its interpretation of the agreement, although it originally
terminated the appellant as a probationary employee, it later rescinded this termination
and eventually issued a notice of removal. Id. at 6 n.1; see id. at 42-49, 113-15.
3
¶3 The appellant petitions for review, arguing, as she did below, that the Board
has jurisdiction over her appeal because the agency terminated her based upon
conditions that arose prior to her employment and because the agency consented
to jurisdiction through its Labor Management Agreement. Petition for Review
(PFR) File, Tab 1 at 1-3; see IAF, Tab 9 at 5-6, Tab 10 at 3. She also argues, as
she did below, that the National Finance Center and BENEFEDS incorrectly
displayed her employment status, which may reflect false statements by the
agency or the fact that the agency rehired her and then unlawfully terminated her
employment. PFR File, Tab 1 at 3-5; see IAF, Tab 5 at 3-5, Tab 9 at 4-5. The
appellant further states that the Board has jurisdiction over her appeal
under 5 C.F.R. § 9901.512(a)(7). PFR File, Tab 1 at 2; see IAF, Tab 5 at 2. She
presents additional arguments, as she did below, that her appeal was timely, that
her termination was not in accordance with law and was a prohibited personnel
practice, that the agency violated her First Amendment rights, and that the agency
violated the Privacy Act. PFR File, Tab 1 at 2-6; see IAF, Tab 5 at 4, Tab 9
at 2-3, 5, Tab 10 at 3. Finally, the appellant alleges factual errors by the
administrative judge including an incorrect statement that she had not submitted
her Notice of Personnel Action with her appeal. PFR File, Tab 1 at 4. The
agency has submitted a response, PFR File, Tab 3, and the appellant has
submitted a reply, PFR File, Tab 5. 3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 We find that the administrative judge was correct that the Board does not
have jurisdiction over this appeal. Only an “employee,” as defined by 5 U.S.C.
§ 7511, can appeal to the Board from an adverse action such as a removal. The
appellant is a nonpreference eligible who was in the excepted service. IAF,
3
To the extent that the appellant attempts to include new evidence on review, we find
that this evidence is not new and material and therefore do not consider it. See 5 C.F.R.
§ 1201.115(d).
4
Tab 8 at 35. As a nonpreference eligible individual in the excepted service, she
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 Ramirez-Evans v. Department of Veterans
Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). There is no indication that the appellant
held an initial appointment pending conversion to the competitive service. Thus,
the appellant can qualify as an “employee” only if she had 2 years of current
continuous service. See 5 U.S.C. § 7511(a)(1)(C)(ii).
¶5 It is undisputed that the appellant was terminated less than 2 years after
beginning her employment with the agency. Additionally, although the appellant
had prior service at another agency, IAF, Tab 8 at 128, the record reflects, and
the appellant does not dispute, that she had a break in federal service of over
1 year, see IAF, Tab 8 at 116. The Board has held that, with respect to both
competitive and excepted positions, the term “current continuous service” means
service immediately prior to the action at issue without a break in service of a
work day. Yeressian v. Department of the Army, 112 M.S.P.R. 21, ¶ 10 (2009).
Because the appellant had a break in service of over a year, she may not tack her
prior service on to her service with the agency and therefore does not meet the
2-year service requirement. See Roy v. Department of Justice, 115 M.S.P.R. 669,
¶¶ 6-8 (2011), aff’d, 672 F.3d 1378 (Fed. Cir. 2012). Thus, the appellant is not
an “employee” with the right to appeal her removal under chapter 75.
¶6 The appellant argues that she was terminated for preappointment reasons
and that the Board therefore has jurisdiction over this appeal under 5 C.F.R.
§ 315.805, 806. PFR File, Tab 1 at 2-3. This regulatory right to appeal applies
only to individuals in the competitive service. Ramirez-Evans, 113 M.S.P.R.
297, ¶ 10. Therefore, because the appellant served in an excepted appointment,
5
she has no right to appeal under 5 C.F.R. § 315.806. The appellant’s analogous
argument that the Board has jurisdiction over her termination based upon
preappointment reasons under 5 C.F.R. § 9901.512(a)(6) is also without merit.
This regulation applied only to certain competitive service Department of
Defense employees and was rescinded prior to the appellant’s termination.
National Security Personnel System, 76 Fed. Reg. 81,359 (Dec. 28, 2011).
¶7 The appellant’s argument that the agency waived the jurisdictional
requirements through additional procedural safeguards that were provided in the
Labor Management Agreement is also without merit. PFR File, Tab 1 at 2-3.
We note that the agency’s termination letter provided the appellant with Board
appeal rights. IAF, Tab 8 at 45-46. However, the agency cannot confer Board
jurisdiction where jurisdiction does not otherwise exist. Waldrop v. U.S. Postal
Service, 72 M.S.P.R. 12, 15 (1996). Accordingly, the Board does not have
jurisdiction, regardless of additional rights provided in the agreement or
mistakenly provided with the termination letter.
¶8 We also have considered the appellant’s arguments that the agency violated
both her First Amendment rights and the Privacy Act and committed both
harmful error and prohibited personnel practices. PFR File, Tab 1 at 1-6.
However, the Board has no jurisdiction to review constitutional claims absent an
otherwise appealable action. Smith v. Department of Defense, 106 M.S.P.R. 228,
¶ 13 (2007). The Board also does not have jurisdiction to review alleged
violations of the Privacy Act when the allegations are not material to an issue
that is properly before it. Young v. U.S. Postal Service, 113 M.S.P.R. 609,
¶¶ 40-41 (2010). Finally, absent an otherwise appealable action, the Board lacks
jurisdiction over claims of harmful error and prohibited personnel practices. See
6
Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012). The Board
therefore does not have jurisdiction to consider these arguments. 4
¶9 We have considered the appellant’s remaining arguments including her
challenge to the administrative judge’s factual determinations and her arguments
concerning the agency’s reporting to the National Finance Center and
BENEFEDS. PFR File, Tab 1 at 4-6. However, as these arguments are not
material to the issue of whether the Board has jurisdiction, we do not address
them.
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.
4
Because we find that the Board does not have jurisdiction, we need not address
whether the appeal was timely filed. See Colligan v. Department of the Army,
36 M.S.P.R. 547, 548 n.1 (1988); see also Key v. U.S. Postal Service, 82 M.S.P.R. 628,
¶ 16 (1999).
7
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 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.