Nydia Y. Pacheco v. Department of Defense ( 2014 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    NYDIA Y. PACHECO,                               DOCKET NUMBER
    Appellant,                        AT-315H-13-0378-I-1
    v.
    DEPARTMENT OF DEFENSE,                          DATE: August 19, 2014
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL ∗
    Nydia Y. Pacheco, Ocean Springs, Mississippi, pro se.
    Kenya M. Gregory, Esquire, Fort Belvoir, Virginia, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed her appeal challenging her termination from an Auditor position 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
    ∗
    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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 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).
    BACKGROUND
    ¶2        The administrative judge found, among other things, that the agency
    appointed the appellant to the career-conditional position of Auditor in the
    competitive service on May 21, 2012; this position was subject to completion of a
    1-year probationary period; and, the agency terminated the appellant’s
    employment effective February 8, 2013, during her probationary period. Initial
    Appeal File, Tab 16, Initial Decision (ID) at 3. The judge rejected the appellant’s
    contention that she was not required to serve a probationary period because she
    had previously completed a probationary period with the Internal Revenue
    Service (IRS) and was appointed to the Auditor position by reinstatement under
    
    5 C.F.R. § 315.401
    . Such appointments are exempt from the 1-year probationary
    period if the individual previously satisfied that requirement.          
    5 C.F.R. § 315.201
    (c)(4). The judge found that the appellant would have been eligible for
    such an appointment but, after reviewing the evidence of record, concluded that
    she had not been so appointed.     ID at 2-3.   The judge further found that the
    3
    appellant was not an “employee” within the meaning of 
    5 U.S.C. § 7511
     and that
    she had not alleged any basis for review under 
    5 C.F.R. § 315.806
    . ID at 4-5.
    ANALYSIS
    ¶3        On review, the appellant reiterates her contention that she should not have
    been required to complete a probationary period because she should be deemed to
    have received a reinstatement appointment under 
    5 C.F.R. § 315.401
     in light of
    her previous completion of a probationary period while employed by the IRS.
    Petition for Review (PFR) File, Tab 3. We agree with the judge’s assessment
    that, “while it appeared that the appellant might have been eligible for a
    reinstatement appointment under 
    5 C.F.R. § 315.401
    , it did not appear from the
    evidence in the record . . . that she was actually appointed under that legal
    authority.” ID at 2. This regulation is a permissive one rather than a description
    of an entitlement, providing that “an agency may appoint by reinstatement to a
    competitive service position a person who previously was employed under career
    or career-conditional appointment (or equivalent).” There is simply no evidence
    that the agency in fact appointed the appellant to the Auditor position under this
    authority. To the contrary, the Standard Form 50 memorializing the appellant’s
    appointment expressly stated that she was required to complete a 1-year
    probationary period. IAF, Tab 11 at 18.
    ¶4        The appellant reiterates the argument she made below that the agency
    should have been bound by language contained in the vacancy announcement for
    the Auditor position: “Probationary Period: You will be required to serve an
    initial probationary period of 1 year if one has not already been completed.” PFR
    File, Tab 3 at 6; IAF, Tab 11 at 5, 14. We disagree. As the Board observed early
    in its existence, “federal employment is not governed by contract principles . . . .
    Appointment, not contract law, is the central concept.”         Bartel v. Federal
    Aviation Administration, 
    14 M.S.P.R. 24
    , 35-36 (1982). Even if the language in
    the vacancy announcement could be viewed as an “offer” that the appellant
    4
    “accepted,” the terms of her employment are governed by the documents effecting
    her appointment. As discussed above, those documents required the appellant to
    complete a 1-year probationary period.
    ¶5        The appellant asserts that she alleged that her termination was reprisal for
    whistleblowing. PFR File, Tab 3 at 8. As indicated by the administrative judge,
    the appellant “vaguely mentioned ‘Abuse and Whistleblower Laws’ within the
    narrative portion of her initial appeal.” ID at 5. We see no other indication in the
    record that the appellant made an allegation of retaliation for whistleblowing.
    Even if she had so alleged, such a claim could only be reached in a case such as
    this, where the Board lacks jurisdiction as an “otherwise appealable action,” in an
    individual right of action (IRA) appeal filed under 
    5 U.S.C. § 1221
    . See 
    5 C.F.R. § 1209.2
    .   If the appellant believes that her termination was reprisal for
    whistleblowing, then she may file an IRA appeal if she first seeks corrective
    action from the Office of Special Counsel, as required by 
    5 U.S.C. § 1214
    (a)(3).
    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 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).
    5
    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 your court
    appeal, you may visit our website at http://www.mspb.gov/probono for a list of
    attorneys who have expressed interest in providing pro bono representation for
    Merit Systems Protection Board appellants before the court. 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.
    

Document Info

Filed Date: 8/19/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021