Opinion

Tina K. Miller v. Department of the Interior

Court
Merit Systems Protection Board
Filed
Mar 10, 2016
Status
Unpublished
Cited by
0 cases
Authority
More cited than 43.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TINA K. MILLER, DOCKET NUMBER

Appellant, DE-0752-15-0041-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: March 10, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tina K. Miller, Sioux City, Iowa, pro se.

Nanette Gonzales, Esquire, Lakewood, Colorado, 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

sustained her removal from service. 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 interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 appellant held the position of Park Ranger at Homestead National

Monument of America in Beatrice, Nebraska. Initial Appeal File (IAF), Tab 5

at 38. In July 2014, the agency proposed her removal based upon the following

charges: (1) making threatening statements; (2) use of offensive language;

(3) disobeying a direct order; and (4) absence without leave (AWOL). Id.

at 118-27. Following the appellant’s response, see id. at 52-61, 63-114, the

deciding official sustained the charges and removal, id. at 38, 40-50.

¶3 The appellant filed the instant appeal, challenging her removal from service.

IAF, Tab 1. After holding the requested hearing, the administrative judge

sustained three of the four charges, denied the appellant’s affirmative defense,

and affirmed her removal. IAF, Tab 49, Initial Decision (ID). The decision noted

that it would become final on October 29, 2015, unless the appellant filed a

petition for review by that date. ID at 24.

¶4 On October 30, 2015, the appellant electronically filed an initial appeal,

which we have construed as a petition for review. Petition for Review (PFR)

File, Tabs 1-2. The Clerk of the Board provided the appellant with information

on how to establish good cause for her untimeliness. PFR File, Tab 2. In

response, the appellant alleged that, although she had difficulties with e-Appeal,

she thought she managed to file successfully on October 29, 2015, but filed again

3

on October 30, 2015, after receiving an email indicating that the prior filing had

not been completed. PFR File, Tab 3 at 3. The agency has filed a response, and

the appellant has replied. PFR File, Tabs 4-5.

¶5 A petition for review must state a party’s objections to the initial decision,

including all of the party’s legal and factual arguments, and must be supported by

specific references to the record and any applicable laws or regulations. 5 C.F.R.

§ 1201.114(b). In this case, the appellant’s petition consists of her identifying

information and a copy of the initial decision. PFR File, Tab 1. It does not

include any arguments or evidence to demonstrate error by the administrative

judge. 2 Id. Therefore, we find that the appellant’s petition does not meet the

Board’s criteria for review under 5 C.F.R. § 1201.115. 3 See Tines v. Department

of the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a petition for review

must contain sufficient specificity to enable the Board to ascertain whether there

is a serious evidentiary challenge justifying a complete review of the record);

Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (determining that,

before the Board will undertake a complete review of the record, a petitioning

party must explain why the challenged factual determination is incorrect and

identify the specific evidence in the record that demonstrates the error).

2

Following the agency’s response, which noted the absence of any argument in the

appellant’s petition, PFR File, Tab 4 at 5-6, the appellant submitted her reply,

containing some arguments concerning the merits of her removal, PFR File, Tab 5

at 3-4. However, a reply is limited to the issues raised by another party in the response

to the petition for review. 5 C.F.R. § 1201.114(a)(4). It may not raise new allegations

of error. Id. Accordingly, we will not consider the appellant’s new arguments, first

raised in her reply. See Boston v. Department of the Army, 122 M.S.P.R. 577, ¶ 5 n.3

(2015) (declining to consider new arguments that were first raised in a reply brief).

3

Because we find that the appellant’s petition does not meet the Board’s criteria for

review under 5 C.F.R. § 1201.115, we need not address the timeliness of her petition.

See Ferrin-Rodgers v. U.S. Postal Service, 115 M.S.P.R. 140, ¶ 7 (2010).

4

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

U.S. 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. 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.

5

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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