The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEANETTE USTARIZ, DOCKET NUMBER
Appellant, AT-315H-17-0316-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: June 9, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeanette Ustariz, Orange Park, Florida, pro se.
Andrew M. Greene, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneou s 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 af fected 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. 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. Except as
expressly MODIFIED by this Final Order to accept the agency’s untimely filed
“Response to Jurisdiction Order and Motion to Dismiss for Lack of Jurisdiction”
into the record below, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a competitive-service appointee, appealed her termination
during her probationary period to the Board and requested a hearing. Initial
Appeal File (IAF), Tab 1. In an order on jurisdiction, the administrative judge
notified her of the applicable law and her burden of proof to establish the Board’s
jurisdiction over her appeal as a probationary employee in the competitive
service. IAF, Tab 3. The administrative judge directed the appellant to respond
within 15 days of the order and allowed the agency an opportunity to respond
before the close of the record on April 3, 2017. Id. at 4-5. The appellant did not
respond. On April 4, 2017—1 day after the close of the record—the agency
submitted its response to the order on jurisdiction and moved to dismiss the
appeal for lack of jurisdiction. 2 IAF, Tab 4. Later that same day, the
2
The agency did not submit the agency file pursuant to the administrati ve judge’s
acknowledgment order. IAF, Tab 2 at 6-7; see 5 C.F.R. § 1201.25. However, its
untimely filed response to the jurisdictional order contains the S tandard Form (SF) 50s
3
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction without holding the appellant’s requested hearing. IAF, Tab 5, Initial
Decision (ID). 3
¶3 The appellant has filed a petition for review of the initial decision, th e
agency has responded in opposition, and the appellant has replied to the agency’s
response. Petition for Review (PFR) File, Tabs 1, 3-4. 4
documenting the appellant’s appointment and termination and the termination letter.
IAF, Tab 4 at 6-11.
3
In the initial decision, the administrative judge stated that he had not considered the
agency’s untimely filed jurisdictional response and motion to dismiss. ID at 4.
However, he cited the agency’s termination letter in the initial decision, which is not
produced in any other submission below. ID at 2; IAF, Tab 4 at 8-10. Although the
administrative judge appeared to consider the agency’s submission without affording
the appellant an opportunity to respond to it, the appellant was not harmed by any
adjudicatory error in this regard because she has had the opportunity to address the
agency’s evidence and argument on review. See Karapinka v. Department of Energy,
6 M.S.P.R. 124, 127 (1981) (stating that an administrative judge’s procedural error is of
no legal consequence unless it is shown to have adversely affected a party’s substantive
rights). In any event, under the unique circumstances of this case, wherein the agency’s
untimely filed submission contains the only copies of the relevant documents in the
record below and the administrative judge already relied on it, and because it was only
untimely filed by 1 day, we find it appropriate to accept the submission into the record
below. See Ackerly v. Department of Transportation, 16 M.S.P.R. 78, 82 (1983)
(finding no basis to disturb the presiding official’s acceptance of the agency’s brief
mailed 1 day after the close of the record absent any showing of prejudice to the
appellant or unfair advantage to the agency); 5 C.F.R. § 1201.12. Accordingly, we
modify the initial decision to accept the agency’s untimely filed “Response to
Jurisdiction Order and Motion to Dismiss for Lack of Jurisdiction” into the record
below. IAF, Tab 4.
4
On review, the agency has again submitted the appointment and termination SF -50s
and termination letter. PFR File, Tab 3 at 4-9. In addition, the appellant has submitted,
for the first time on review, a Designation of Beneficiary form dated October 14, 2016.
PFR File, Tab 4 at 5. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence 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). Because we have
accepted the documents submitted by the agency into the record below, we need not
address whether it is appropriate to consider these documents sub mitted for the first
time on review. See id. We do not consider the appellant’s Designation of Beneficiary
form submitted for the first time on review because she has not alleged, nor do we
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.
§ 7511(a)(1) generally has the right to challenge her removal from Federal service
by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs,
116 M.S.P.R. 234, ¶ 9 (2011). To qualify as an “employee” with appeal rights
under chapter 75, an individual in the competitive service, like the appellant,
must show that she either is not serving a probati onary period or has completed
1 year of current continuous service under an appointment other than a temporary
one limited to a year or less. 5 U.S.C. § 7511(a)(1)(A); see McCormick v.
Department of the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002); Baggan v.
Department of State, 109 M.S.P.R. 572, ¶ 5 (2008).
¶5 Here, the administrative judge found that the appellant failed to
nonfrivolously allege that she was an employee with a statutory right to appeal
her termination to the Board because she acknowledged that she was serving a
probationary period at the time of her termination and did not allege that she had
1 year of current continuous service. ID at 3. The appellant has not challenged
this finding on review. PFR File, Tabs 1, 4. We have reviewed the record and
agree that the appellant has not nonfrivolously alle ged that she met the definition
of an “employee” under chapter 75 when, on February 24, 2017, the agency
terminated her from her competitive-service position during her probationary
period—approximately 4 months after her October 17, 201 6 appointment. IAF,
Tab 4 at 7-11.
¶6 A probationary employee in the competitive service who does not have a
statutory right of appeal may nonetheless have a regulatory right of appeal to the
discern any basis to find, that it was unavailable before the record closed below despite
her due diligence. See id.
5
Board if she makes a nonfrivolous allegation that the agency terminated her
because of discrimination based on marital status or for partisan political reasons,
or because of conditions arising before appointment to the position in question.
Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005); 5 C.F.R.
§§ 315.805-.806. The administrative judge found that the appellant failed to
nonfrivolously allege that she had a regulatory right to appeal her termination.
ID at 4. On review, the appellant does not challenge the administrative judge’s
findings that her termination was not based on partisan political reasons or
preappointment conditions, PFR File, Tabs 1, 4, and we discern no basis to
disturb these findings. For the first time on review, however, she argues that the
agency terminated her on the basis of marital status discrimination . PFR File,
Tab 1 at 6.
¶7 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant did
not allege marital status discrimination in her initial appeal to the Board. IAF,
Tab 1. In addition, as noted above, she failed to respond to the administrative
judge’s order on jurisdiction, which explicitly informed her that she could
establish Board jurisdiction by nonfrivolously alleging that her termination was
based on marital status discrimination. IAF, Tab 3 at 2. On review, the appellant
does not allege that she was unable to raise this argument below and does not
provide any explanation for her failure to do so. PFR File, Tabs 1, 4. Rather, she
alleges that the incident giving rise to her claim occurred in October 2016—well
before the April 3, 2017 close of the record below. PFR File, Tab 1 at 4; IAF,
6
Tab 3 at 4-5. Under these circumstances, we decline to consider the appellant’s
marital status discrimination claim for the first time on review . 5
¶8 The appellant also argues on review, as she did below, that the agency
discriminated against her on the basis of age. PFR File, Tab 1 at 4. As the
administrative judge correctly determined, however, the Board lacks jurisdiction
over the allegations of age discrimination absent an otherwise appealable action.
ID at 4; Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982). Similarly, even if we were to consider her other
argument, raised for the first time on review, that the agency discriminated
against her on the basis of her national origin, the Board lacks jurisdiction over
such a claim absent an otherwise appealable action. See Wren, 2 M.S.P.R. at 2;
Banks, 4 M.S.P.R. at 271; PFR File, Tab 1 at 5.
¶9 In light of the foregoing, we find that the administrative judge correctly
dismissed the appellant’s termination appeal for lack of jurisdiction.
5
Even if we were to consider the appellant’s claim of marital status discrimination for
the first time on review, we would find that she failed to raise a nonfrivolous allegation.
To make a nonfrivolous allegation of marital status discrimination, an appellant “may
allege facts to show that she was treated differently because of her marital status or that
go to the essence of her status as a married, single or divorced person.” Smirne v.
Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010). Her allegations must be more
than “mere conjecture,” and she must provide supporting facts to show the allegations
are not merely pro forma. Id. Merely conclusory pleadings are insufficient. Stokes v.
Federal Aviation Administration, 761 F.2d 682, 686 (Fed. Cir. 1985). Here, the
appellant alleges that, during a training class in late October 2016, the Acting Manager
displayed her Designation of Beneficiary form on the wall in front of the entire class,
which named her sister as her sole beneficiary. PFR File, Tab 1 at 4. According to the
appellant, because the Designation of Beneficiary form named her sister as her sole
beneficiary, it was “made obvious that [she] was either single or divorced.” Id. The
appellant’s allegation that the Acting Manager became aware that she was single or
divorced in October 2016 is insufficient to constitute a nonfrivolous allegation that
another agency official imposed her termination 4 months later on the basis of marital
status discrimination. See Smirne, 115 M.S.P.R. 51, ¶ 8.
7
NOTICE OF APPEAL RIGHTS 6
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rec eives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national o rigin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fede ral
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, 10, 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
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.