The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LATAYA STEWART, DOCKET NUMBER
Appellant, CH-315H-15-0338-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: February 25, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
LaTaya Stewart, Cleveland, Ohio, pro se.
Jill B. Lubetsky, Esquire, and Pamela D. Langston-Cox, Esquire, Chicago,
Illinois, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administrative 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, 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 a GS-05 career-conditional contract
representative position with the agency’s Internal Revenue Service effective
December 29, 2014. Initial Appeal File (IAF), Tab 4 at 7. The appointment was
subject to a 1-year probationary period. Id. On March 16, 2015, the agency
issued the appellant notice of its decision to terminate her employment during her
probationary period, effective that day. Id. at 9.
¶3 The appellant appealed her termination, arguing that the agency’s given
reason for her termination was not valid and that the agency instead terminated
her because of another incident for which “they didn’t have a leg to stand on.”
IAF, Tab 1 at 5. The administrative judge issued an acknowledgment order as
well as a separate jurisdictional order in which she explicitly set forth the
elements and burdens that the appellant must meet to entitle her to a hearing in
this appeal and ordered her “to file evidence or argument to establish why this
appeal should not be dismissed for lack of a non-frivolous allegation of
jurisdiction.” IAF, Tabs 2-3. The agency first moved to suspend the case
deadlines pending the administrative judge’s ruling on the jurisdictional question.
IAF, Tab 5. The administrative judge granted the agency’s motion to suspend the
3
case deadlines. IAF, Tab 6. The agency then moved to dismiss the appeal for
lack of jurisdiction. IAF, Tab 7. The appellant did not respond.
¶4 On the written record, the administrative judge determined that because the
appellant alleged that the agency terminated her for post-appointment reasons, but
she did not allege that the agency discriminated against her based on partisan
political reasons or on account of her marital status, the appellant failed to make a
nonfrivolous allegation that the Board has jurisdiction over her appeal and
dismissed it on that basis. IAF, Tab 8, Initial Decision (ID) at 3. In her timely
filed petition for review, the appellant argues the merits of her termination
appeal, but she again fails to address the jurisdictional issue. Petition for Review
(PFR) File, Tab 1 at 4.
¶5 Because the appellant was terminated from a competitive service position,
IAF, Tab 5 at 7, she must satisfy the definition of “employee” set forth at
5 U.S.C. § 7511(a)(1)(A) to have Board appeal rights under 5 U.S.C. chapter 75.
Henderson v. Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To
qualify as an “employee,” the appellant must show that she is not serving a
probationary period or has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less. 5 U.S.C.
§ 7511(a)(1)(A); McCormick v. Department of the Air Force, 307 F.3d 1339,
1341-43 (Fed. Cir. 2002). The record reflects that the appellant served less than
3 months of her 1-year probationary period, IAF, Tab 5 at 7-13, and it does not
show, nor has the appellant alleged, that she had any prior Federal service. Thus,
the appellant does not meet the definition of “employee” at 5 U.S.C.
§ 7511(a)(1)(A), and she does not have the right to appeal her termination to the
Board under 5 U.S.C. §§ 7513(d) and 7701.
¶6 A probationary employee in the competitive service who, like the appellant,
was terminated for post-appointment reasons, can bring an appeal of her
termination to the Board, but only if she makes nonfrivolous allegations that the
agency discriminated against her because of marital status or partisan political
4
affiliation. Henderson, 114 M.S.P.R. 149, ¶ 9; Smith v. Department of Defense,
106 M.S.P.R. 228, ¶ 8 (2007). The appellant did not claim in her appeal, and
does not claim in her petition for review, that the termination was based on
marital status or partisan political discrimination. The administrative judge
issued two orders that informed the appellant that she must make such an
allegation in order to establish the Board’s jurisdiction over the appeal, IAF, Tabs
2-3, but the appellant did not respond to either of the orders.
¶7 The appellant filed nothing but her initial appeal below, and she does not
address her failure to file any evidence or argument on the jurisdictional issue
before the record closed below. Instead, the appellant simply reiterates her
arguments on the merits of her termination. PFR File, Tab 1 at 4. Because the
appellant’s arguments do not address the issue of Board jurisdiction, they provide
no basis to disturb the initial decision. See Rivera v. Department of the Navy,
114 M.S.P.R. 52, ¶ 7 (2010) (finding that, in an appeal of a termination during a
probationary period, the merits of the agency’s decision are not before the
Board).
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
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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 U.S. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.