The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIERA N. JOHNSON, DOCKET NUMBER
Appellant, PH-315H-15-0123-I-1
v.
SOCIAL SECURITY DATE: September 1, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kiera N. Johnson, Tampa, Florida, pro se.
Ellen Rothschild, Esquire, Baltimore, 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 probationary 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
¶2 The agency appointed the appellant to the career-conditional position of
Social Insurance Specialist, effective May 18, 2014. Initial Appeal File (IAF),
Tab 5 at 45. The position was subject to a 1-year probationary period. Id. at 45,
48, 50. Within that year, on November 14, 2014, the agency terminated the
appellant’s appointment, citing unacceptable conduct. Id. at 32-35.
¶3 The appellant filed an appeal of her probationary termination. IAF, Tab 1.
Her filing referenced 5 U.S.C. § 2302(b)(8), (9), as well as the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified
at 38 U.S.C. §§ 4301-4333) (USERRA). Id. at 5. However, she did not provide
specific allegations, such as an explanation as to how the agency may have
violated those provisions of law.
¶4 Twice, the administrative judge issued orders directing the appellant to
meet her jurisdictional burden of proof. IAF, Tab 2 at 1-5, Tab 6 at 1-6. The
appellant failed to respond to either order. Therefore, based on the limited
information in her initial pleading and the agency’s file, the administrative judge
3
dismissed the appeal for lack of Board jurisdiction. 2 IAF, Tab 7, Initial Decision
(ID). The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. 3 The agency has filed a response. PFR File, Tab 3.
¶5 In her petition, the appellant submits arguments and documentation that
were not included in the record below, asserting that “documents supporting [her]
initial appeal were not properly uploaded.” PFR File, Tab 1 at 3, 5-15, 20-44.
We find that the administrative judge properly dismissed the appeal for lack of
Board jurisdiction.
¶6 The Board has jurisdiction over an individual right of action (IRA) appeal if
the appellant exhausts her administrative remedies before the Office of Special
Counsel (OSC) and makes nonfrivolous allegation that: (1) she made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d
1367, 1371 (Fed. Cir. 2001). Although the appellant cited 5 U.S.C.
§ 2302(b)(8), (9) below, she presented no arguments or evidence as to the same in
order to meet the aforementioned jurisdictional burden. IAF, Tab 1 at 5.
¶7 For the first time on review, the appellant has presented evidence
suggesting that she reported misconduct of coworkers to management, as well as
allegations that this reporting may have contributed to her termination. PFR File,
Tab 1 at 5-15, 20-44. However, even if we considered the new evidence and
2
The appellant did not request a hearing. IAF, Tab 1 at 2.
3
The appellant labeled her pleading as a request to reopen an appeal dismissed without
prejudice. PFR File, Tab 1 at 1. However, the initial decision did not dismiss the
appeal without prejudice. ID at 1, 4. Therefore, the appellant’s pleading has been
construed as a petition for review. PFR File, Tab 2 at 1.
4
arguments of purported reprisal for protected activity, 4 the appellant failed to
prove, or even allege, that she exhausted her administrative remedies before OSC.
Accordingly, to the extent that the appellant intended to bring an IRA appeal, she
failed to meet her jurisdictional burden.
¶8 Next, the Board has jurisdiction over a USERRA claim if an appellant
alleges that: (1) she served in the military; (2) she was denied initial
employment, reemployment, retention in employment, promotion, or a benefit of
employment; and (3) the denial was due to her service in the military. Beck v.
Department of the Navy, 120 M.S.P.R. 504, ¶ 8 (2014). Although the appellant
cited USERRA below, she again failed to present any arguments or evidence as to
the same. IAF, Tab 1 at 5. She has indicated that she has prior military service
and she disputed the agency’s decision to terminate her employment, generally.
See IAF, Tab 1; PFR File, Tab 1. However, she presented no support for her
allegation, below or on review, that the agency’s decision to terminate her
employment was due to her military service. Therefore, to the extent that the
appellant intended to bring a USERRA claim, she again failed to meet her
jurisdictional burden.
¶9 Finally, we note that the agency submitted evidence that the appellant was a
probationary employee with less than 1 year of competitive service at the time of
her termination, IAF, Tab 5 at 45, and the appellant failed to present any
argument or evidence to the contrary. Therefore, the record demonstrates that she
was not an “employee” with statutory Board appeal rights under 5 U.S.C.
4
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence or
argument submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see Banks v. Department
of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, the issue of the Board’s
jurisdiction is always before it, and may be raised by either party or sua sponte by the
Board any time during a Board proceeding. Zajac v. Department of Agriculture,
112 M.S.P.R. 160, ¶ 8 (2009).
5
chapter 75. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013). In addition, the appellant has presented no
argument or evidence that her termination was in any way related to marital status
discrimination, partisan political reasons, or preappointment reasons. Therefore,
she does not have regulatory Board appeal rights under 5 C.F.R. § 315.805. See
Walker, 119 M.S.P.R. 391, ¶ 5. Accordingly, we find that the appellant has
presented no other basis for establishing jurisdiction over her probationary
termination. Based on the foregoing, we affirm the initial decision dismissing the
appeal for lack of jurisdiction.
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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
6
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the 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.
7
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.