The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINA G. PALACIOS, DOCKET NUMBER
Appellant, NY-315H-19-0067-I-1
v.
SOCIAL SECURITY DATE: May 23, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christina G. Palacios , Brooklyn, New York, pro se.
David B. Myers , Baltimore, Maryland, for the agency.
Johanny Santana , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because she was not an “employee”
with appeal rights to the Board. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. 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).
BACKGROUND
Effective September 15, 2014, the agency appointed the appellant, a
non-preference eligible, to the position of Legal Administrative Specialist
(Benefit Authorizer), pursuant to the Schedule D excepted service appointing
authority in 5 C.F.R. § 213.3402(b), the Recent Graduates Program. Initial
Appeal File (IAF), Tab 13 at 14-15, 19-23. The appellant’s appointment was
subject to the completion of a 2-year trial period beginning on
September 15, 2014. Id. at 14-15, 21, 25; see 5 C.F.R. § 362.303(f) (stating that
the duration of the Recent Graduates appointment in the excepted service is a trial
period). On April 22, 2015, the agency notified the appellant that she was
terminated, effective at the close of business that day. 2 IAF, Tab 1 at 74-77.
Instead, that same day, the appellant resigned from her position. IAF, Tab 1
at 11, Tab 12 at 29-30, Tab 13 at 16-17.
2
In its notice of termination, the agency listed two effective dates—April 20, 2015, and
April 22, 2015—for the appellant’s termination. IAF, Tab 1 at 74. It appears that the
date of April 20, 2015, was a typographical error because the record shows, and the
appellant does not dispute, that the agency intended her termination to be effective on
April 22, 2015. IAF, Tab 14 at 30.
3
In her Board appeal, the appellant identified the termination during her trial
period and her involuntary resignation as the actions that she was appealing. IAF,
Tab 1 at 3. She requested a hearing. Id. at 2. Based on the information the
appellant provided in her initial appeal form, the administrative judge informed
the appellant that the Board may lack jurisdiction over her appeal, set forth the
jurisdictional standard for a termination from a competitive service position
during a probationary or trial period, and ordered the appellant to submit evidence
and argument to make a nonfrivolous allegation of Board jurisdiction.
IAF, Tab 3. In her response, the appellant asserted, among other things, that the
Board has jurisdiction over her probationary termination appeal because she
satisfied the criteria set forth in 5 C.F.R. §§ 315.805-.806. IAF, Tab 12 at 7-12.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 13.
The administrative judge issued an Order to Show Cause, noting that the agency
had supplied evidence that the appellant occupied an excepted service position.
IAF, Tab 15 at 1. The administrative judge set forth the standard for the Board’s
jurisdiction over an appeal from a non-preference eligible excepted service
employee under 5 U.S.C. § 7511(a)(1)(C), and she afforded the appellant
additional time to submit evidence and argument to make a nonfrivolous
allegation of jurisdiction over the appeal. Id. at 1-2. The appellant did not
respond to the Order to Show Cause.
Without holding a hearing, the administrative judge issued an initial
decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial
Decision (ID) at 1-2, 5. She found that the appellant had not nonfrivolously
alleged that she completed 2 years of current, continuous service, as required in
5 U.S.C. § 7511(a)(1)(C); thus, she was not an “employee” with a right to file an
appeal with the Board. ID at 3-5.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition, and the
appellant has replied. PFR File, Tabs 3-4.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation of Board jurisdiction. 3
The Board’s jurisdiction is not plenary; it 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). A voluntary action,
such as a resignation, is generally not appealable to the Board under chapter 75.
Parrott v. Merit Systems Protection Board, 519 F.3d 1328, 1332 (Fed. Cir. 2008).
An involuntary resignation, however, is equivalent to a forced removal within the
Board’s jurisdiction under chapter 75. Id. In an involuntary resignation appeal,
an appellant is entitled to a jurisdictional hearing only if she makes a
nonfrivolous allegation of Board jurisdiction. Id.
The appellant does not challenge on review the agency’s evidence, which
clearly showed that she was appointed to an excepted service position. As a
non-preference eligible individual in the excepted service, the appellant may
appeal an adverse action, such as an involuntary resignation, to the Board only if
she qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(C). Martinez v.
Department of Homeland Security, 118 M.S.P.R. 154, ¶ 5 (2012). An “employee”
under 5 U.S.C. § 7511(a)(1)(C)(i)-(ii) is defined as an individual in the excepted
service (other than a preference eligible) “who is not serving a probationary or
trial period under an initial appointment pending conversion to the competitive
service” or “who has completed 2 years of current continuous service in the same
or similar positions in an Executive agency under other than a temporary
appointment limited to 2 years or less.” Id. The Board has jurisdiction if either
section 7511(a)(1)(C)(i) or (ii) is satisfied. Id. Based on her submissions below
and on review, the appellant has not made a nonfrivolous allegation that she
satisfied either criterion. It is undisputed that she was serving a trial period at the
3
Although the administrative judge stated that the appellant failed to “show” that the
Board has jurisdiction over the appeal, ID at 3, we assume that this was a typographical
error because she properly held elsewhere that the appellant failed to make a
nonfrivolous allegation of Board jurisdiction, ID at 3, 5.
5
time of her resignation. As the administrative judge noted, she has neither
alleged that she completed 2 years of current, continuous service in her position,
nor identified any prior Federal service that could be tacked on toward the
completion of her trial period. ID at 3-4; see IAF, Tab 13 at 14-15, 18, 24; see
Martinez, 118 M.S.P.R. 154, ¶ 6 (explaining that an individual’s prior service
may be tacked toward the completion of the probationary or trial period in the
excepted service when the prior service was performed in the same agency,
performed in the same line of work, and completed with no more than one break
in service of less than 30 days). Therefore, the administrative judge properly
dismissed her appeal for lack of jurisdiction because the appellant has not made a
nonfrivolous allegation that she is an “employee” under 5 U.S.C. § 7511(a)(1)
(C). 4
Because of this disposition, we also lack jurisdiction to hear the merits of
her claims that the agency improperly terminated her during her trial period,
forced her to resign, violated merit system principles, and committed prohibited
personnel practices. PFR File, Tab 1 at 4, Tab 4 at 4-11; see, e.g., Davis
v. Department of Defense, 105 M.S.P.R. 604, ¶ 15 (2007) (stating that the merit
system principles do not provide an independent basis for Board jurisdiction);
Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569 (1992) (noting
that the legislative history of the merit system principles indicate that they were
not intended to be self-executing); Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices under 5 U.S.C.
§ 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
867, 871-73 (D.C. Cir. 1982). Because the appellant did not make a nonfrivolous
allegation of jurisdiction, she was not entitled to a hearing.
4
In the initial decision, the administrative judge addressed the appellant’s claim that
she has regulatory appeal rights pursuant to 5 C.F.R. § 315.806. ID at 4-5; IAF, Tab 12
at 10, 12, Tab 14 at 9-10, 20. The Board need not reach the issue of whether the
appellant satisfies the conditions of 5 C.F.R. § 315.806 because that regulation applies
only to individuals in the competitive service. Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 13 (2009).
6
Based on our review of the record, the appellant raised an involuntary
resignation claim in 2015 before the Equal Employment Opportunity
Commission, which found that the agency did not discriminate against her on the
basis of national origin, sex, or retaliation for prior equal employment
opportunity activity. IAF, Tab 1 at 79-96, 98-101, Tab 12 at 37-39. In the initial
decision, the administrative judge stated that she need not address the election of
remedies issue raised by the agency in its jurisdictional response. ID at 5 n.2;
IAF, Tab 13 at 10-11. Because we agree with the administrative judge that the
appellant is not an “employee” with appeal rights to the Board, we need not reach
this issue.
We deny the appellant’s request to seal or redact the record or, alternatively,
to grant her anonymity.
The appellant requests that the Board “seal the record or redact it” because
it contains “damaging” information. PFR File, Tab 1 at 4. The Board’s
consideration of a sealed-record request is circumscribed by the Freedom of
Information Act. 5 U.S.C. § 552; Nefcy v. Environmental Protection Agency,
94 M.S.P.R. 435, ¶ 5 (2003). Public policy does not favor sealing records, and
the burden is on the party making such a request to demonstrate why the record
should be sealed. Nefcy, 94 M.S.P.R. 435, ¶ 5.
In Nefcy, 94 M.S.P.R. 435, ¶¶ 5-7, the Board addressed the appellant’s
sealed-record request because the record contained information about her medical
condition and disability. The Board denied her request because such documents
were already protected by the Privacy Act. Id., ¶ 7. By contrast, the appellant
admits here that the record contains no medical information. PFR File, Tab 1
at 4. Nor does the initial decision contain any medical or disability-related
information. Because the appellant has not advanced a compelling reason that
warrants a Board order to seal or redact the record, we deny her request. Social
Security Administration v. Doyle, 45 M.S.P.R. 258, 262 (1990). Even if the
7
appellant limits the scope of her request to the initial decision, we are not
persuaded that such an action is appropriate.
We have alternatively considered that the appellant may be seeking to
proceed anonymously before the Board. The Board has not adopted a rigid,
mechanical test for determining whether to grant anonymity but instead applies
certain general principles and considers several factors in making such
determinations. Pinegar v. Federal Election Commission, 105 M.S.P.R. 677, ¶ 10
(2007). Those factors include whether identification creates a risk of retaliatory
physical or mental harm, whether anonymity is necessary to preserve privacy in a
matter of a sensitive and highly personal nature, or whether the anonymous party
is compelled to admit her intention to engage in illegal acts, thereby risking
criminal prosecution. Id.
A party seeking anonymity must overcome the presumption that parties’
identities are public information. Id., ¶ 11. Anonymity should be granted to
litigants before the Board only in unusual circumstances, and the determination
whether to grant anonymity must depend on the particular facts of each case. Id.
A litigant must present evidence establishing that harm is likely, not merely
possible, if her name is disclosed. Id. Even when some harm is likely, the Board
grants anonymity only when the likelihood and extent of harm to the appellant
significantly outweighs the public interest in the disclosure of the parties’
identities. Id.
Here, the appellant has presented nothing more than a bare allegation that
the initial decision contains “damaging” information. PFR File, Tab 1 at 4. She
opines that the administrative judge’s statements could be misinterpreted by
individuals who are unfamiliar with the facts of the case. Id. The appellant’s
speculative claim about the harm she may suffer if some unidentified third party
misinterprets the administrative judge’s statement about the agency’s stated
reason for her termination is insufficient to justify shielding her identity. See,
e.g., Pinegar, 105 M.S.P.R. 677, ¶ 19 (noting that the appellant has not explained
8
why harm is likely and has offered no evidence to support his allegation); Ortiz
v. Department of Justice, 103 M.S.P.R. 621, ¶ 11 (2006) (rejecting the appellant’s
claim that his identity should be hidden because the facts concerning his medical
condition “might be misinterpreted and/or otherwise used to deny him
employment opportunities”). Because she has not shown that harm is likely if her
name is disclosed, and she has not rebutted the presumption that her identity is
public information in this Board appeal, we conclude that the appellant should not
be permitted to proceed anonymously.
NOTICE OF APPEAL RIGHTS 5
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 applicable 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 choices 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.
5
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.
9
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).
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 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
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. 420 (2017). If you have a representative in this case,
10
and your representative receives 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 discrimination based on
race, color, religion, sex, national origin, 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
11
(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
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. 6 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 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, 10, and 11.
6
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.
12
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.