The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA M. OPPÉ, DOCKET NUMBER
Appellant, DC-315H-15-0136-I-1
v.
NATIONAL AERONAUTICS AND DATE: May 19, 2015
SPACE ADMININSTRATION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Angela M. Oppé, New Castle, Washington, pro se.
David S. Schuman, Greenbelt, Maryland, 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 jurisdiction
based on the doctrine of collateral estoppel. 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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. Except as
expressly modified by this Final Order, we AFFIRM the initial decision. 2
¶2 The appellant filed this appeal challenging her termination while serving a
probationary period. 3 Initial Appeal File (IAF), Tab 1. She was appointed by the
National Aeronautics and Space Administration (NASA) as a Resources Analyst,
GS-0501-12, effective March 8, 2004, subject to a 1-year probationary period.
Oppé v. National Aeronautics & Space Administration, MSPB Docket No.
DC-315H-05-0351-I-1, Initial Decision at 2 (Apr. 28, 2005) (hereinafter Oppé I).
She was terminated effective February 15, 2005. Id. Her termination was the
subject of a prior appeal that the administrative judge dismissed for lack of
jurisdiction. See id. at 1, 5. She did not file a petition for review, and the initial
decision became the Board’s final decision. Based on the parties’ written
2
Some of the dates in the initial decision are inaccurate. We have corrected the initial
decision here in that respect.
3
This appeal was filed more than 30 days after the appellant’s receipt of the decision
terminating her employment. See 5 C.F.R. § 1201.22(b). The administrative judge
made no findings on the issue of timeliness. Initial Appeal File, Tab 10, Initial
Decision (ID) at 1 n.1. Because the Board lacks jurisdiction over the appeal, he found
it unnecessary to reach that issue. I d.
3
submissions, the administrative judge found that the appeal was barred by
collateral estoppel and dismissed it. 4 IAF, Tab 10, Initial Decision (ID) at 3-5.
¶3 On review, the appellant claims that the administrative judge failed to
consider evidence of which she had recently become aware. See Petition for
Review (PFR) File, Tab 1 at 4-6. She asserts that she learned that, after it
terminated her in 2005, NASA removed from her Official Personnel File a
September 28, 1979 Standard Form (SF) 50, which showed that she was a tenured
employee who resigned to enter the U.S. Navy, and it substituted a “fraudulent”
SF-52, which did not show that she had completed her probationary period. PFR
File, Tab 1 at 4-6, 8, 13-14, 28-31; see Oppé v. Department of State, MSPB
Docket No. DC-315H-15-0137-I-1, Final Order, ¶ 5 (Apr. 10, 2015) (hereinafter
Oppé II). In 2010, the appellant was terminated from a position as a Contract
Specialist, GS-01102-09, in the International Affairs Branch, Office of Logistics
Management, Department of State, while serving a probationary period. Oppé II,
¶ 2. In her State Department appeal, she contended that the September 28, 1979
SF-50 shows that she is entitled to lifetime reinstatement rights and benefits
pursuant to 5 C.F.R. § 315.401(b) as a 10-point preference-eligible veteran who
has already served a probationary period. 5 Oppé II, ¶ 5.
¶4 The administrative judge, however, did not fail to consider the appellant’s
assertion that she had completed a probationary period during a prior period of
federal employment. Extensive documentation regarding that issue is in the
4
The appellant requested a hearing, but the admin istrative judge found that she had
failed to raise a nonfrivolous allegation which, if proven, could bring the appeal with in
the Board’s jurisdiction. ID at 1-2 n.2.
5
Subject to Part 335 of Title 5, Code of Federal Regulations (provisions for promotion
and internal placement), an agency may reinstate to the competitive service a person
who previously was employed under a career or career-conditional appointment (or
equivalent). There is no time limit for the reinstatement eligibility of a preference
eligible or a person who completed the service requirement for career tenure. 5 C.F.R.
§ 315.401(a)–(b).
4
record. See IAF, Tab 1, Enclosure (Encl.) 2. Even so, however, he found that the
issue of jurisdiction to be precluded by the 2005 appeal.
¶5 Issue preclusion, or collateral estoppel, bars the relitigation of an issue in a
Board appeal when: (1) an issue is identical to the one involved in a prior appeal;
(2) the issue was actually litigated in the prior appeal; (3) the determination on
the issue in the prior appeal was necessary to the resulting judgment; and (4) the
party precluded was fully represented in the prior action. McNeil v. Department
of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). Further, collateral estoppel may bar a
party from relitigating the issue of jurisdiction in a second appeal when the prior
appeal was dismissed for lack of Board jurisdiction as it was here. See Noble v.
U.S. Postal Service, 93 M.S.P.R. 693, ¶¶ 10-11 (2003) (collateral estoppel may be
grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional
determination in a prior decision is afforded collateral estoppel effect and the
appellant provides no other valid basis of Board jurisdiction). An issue is
considered “actually litigated” when, as here, it was properly raised by the
pleadings, submitted for determination, and determined. Id., ¶ 9. An appellant is
considered to have been fully represented even when she represented herself. See
Fisher v. Department of Defense, 64 M.S.P.R. 509, 515 (1994) (the party need not
have been represented by an attorney; rather, the relevant question is whether her
interests relevant to the issue being litigated were fully represented in the prior
litigation).
¶6 The issue of the Board’s jurisdiction here was raised and litigated in the
2005 appeal, and the administrative judge’s determination on that issue was
necessary to the resulting judgment. See Oppé I at 2-5. Both parties’ interests
were fully represented. In the 2005 appeal, the appellant contended as she does
now that she met the requirement of “current continuous service” and the
definition of “employee” under 5 U.S.C. § 7511(a)(1). See Oppé I at 3-4. The
administrative judge rejected her claims that she had satisfied the requirement by
having served more than 1 year without a break in service in positions at the
5
Veterans Administration and the Department of the Navy—jobs she had held
consecutively between February 15, 1978, and September 28, 1979. Id. at 4-5.
The administrative judge noted that the “current continuous service” requirement
can only be satisfied by the completion of such a period of employment
immediately preceding the adverse action in question. Id. at 4. The appellant’s
period of service ended more than 24 years before her March 8, 2004 appointment
with the agency. Id. The administrative judge dismissed the appeal for lack of
Board jurisdiction. Id. at 5.
¶7 The administrative judge thus correctly found that the issue of the
appellant’s probationary termination raised in this appeal was also raised before
the Board in 2005 and barred by collateral estoppel. See ID at 5. To the extent
that the appellant asserts that her discovery of the SF-52 justifies reconsideration,
she is simply seeking another bite of the apple. When she was appointed, she was
on notice that she was subject to a probationary period. See IAF, Tab 1, Encl. 3
at N18. She could have reasonably asked why she was not reinstated pursuant
to 5 C.F.R. § 315.401. In any event, the Board lacks jurisdiction over an
agency’s decision not to reinstate an employee pursuant to 5 C.F.R. § 315.401.
Hicks v. Department of the Navy, 33 M.S.P.R. 511, 512-13 (1987) (5 C.F.R. §
315.401 does not provide the Board with jurisdiction over an agency’s alleged
denial of reinstatement rights under that section); see Fesler v. Department of the
Interior, 52 M.S.P.R. 660, 633 (1992). We also note that the plain language
of 5 C.F.R. § 315.401 is permissive rather than mandatory, i.e., “an agency may
appoint by reinstatement to a competitive service position a person who
previously was employed under career or career-conditional appointment (or
equivalent).” 5 C.F.R. § 315.401(a) (emphasis added). As a general matter,
moreover, a person who is “given a career or career-conditional appointment”
must complete a 1-year probationary period. See 5 C.F.R. § 315.801(a). The
appellant’s arguments are thus unavailing, and the administrative judge properly
dismissed her appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. 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 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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
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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.