Teodora Garcia v. Department of the Treasury ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEODORA GARCIA, DOCKET NUMBER
Appellant, DA-315H-16-0512-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 31, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Teodora Garcia, Austin, Texas, pro se.
Bridgette M. Gibson, Esquire, and Michael L. Salyards, Esquire, Dallas,
Texas, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
¶2 The agency terminated the appellant from her competitive -service position
as a GS-4 Data Transcriber during her probationary period. Initial Appeal File
(IAF), Tab 7 at 18, 20-22. She timely appealed her termination to the Board.
IAF, Tab 1. The administrative judge issued an order explaining that the
appellant has the burden of proving that the action was within the Board’s
jurisdiction, providing explicit information on what was required to establish an
appealable jurisdictional issue, and directing her to file evidence and argument
proving jurisdiction. IAF, Tab 2; see Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985).
¶3 After receiving the parties’ submissions, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction without holding the
requested hearing. IAF, Tab 8, Initial Decision (ID). The appellant has filed a
petition for review of the initial decision, and the agency has responded in
opposition. Petition for Review (PFR) File, Tabs 1, 3.
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DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Generally, the Board lacks jurisdiction over a probationary employee ’s
appeal from a termination during the probationary period. Hurston v. Department
of the Army, 113 M.S.P.R. 34, ¶ 8 (2010). To establish Board jurisdiction under
5 U.S.C. chapter 75, an individual must, among other things, show that she
satisfies one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.
§ 7513(d); see Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).
For an individual in the competitive service, like the appellant, this means that
she must either: (1) not be serving a probationary or trial period under an initial
appointment; or (2) have 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). Individuals in the competitive service who do not satisfy either
definition may nevertheless have a regulatory right to appeal a termination to the
Board when: (1) the employee was discriminated against based on her marital
status; (2) the agency action was based on partisan political reasons; or (3) the
agency action was based (in whole or in part) on preappointment reasons , and the
agency did not follow the procedures of 5 C.F.R. § 315.805. 5 C.F.R.
§ 315.806(a)-(c); see Walker, 119 M.S.P.R. 391, ¶ 5. Absent a nonfrivolous
allegation of jurisdiction by an appellant, there is no right to a hearing on the
threshold issue of jurisdiction. See Campion v. Merit Systems Protection Board,
326 F.3d 1210, 1215 (Fed. Cir. 2003).
¶5 On review, the appellant does not challenge the administrative judge ’s
determinations that she was not an “employee” within the meaning of 5 U.S.C.
§ 7511(a)(1) and that she did not nonfrivolously allege or show that the
termination was based on partisan political reasons, marital status discrimination,
or conditions arising before her appointment. PFR File, Tab 1; see ID at 2-5.
Rather, the appellant challenges on review the merits of her termination and
alleges that her Individual Performance Report, explaining her scores during her
probationary period, was overlooked. PFR File, Tab 1. She submits for the first
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time on review several documents supporting these arguments. Id. at 6-12.
However, none of the appellant’s arguments constitute a nonfrivolous allegation
of any of the exceptions to the general rule discussed above, and she has not
shown that the evidence she submits on review was unavailable before the record
closed despite her due diligence and was material to the jurisdictional issues in
this case. See 5 C.F.R. § 1201.115(d). Thus, even if true, nothing the appellant
alleges on review would establish Board jurisdiction ove r her probationary
termination.
¶6 Accordingly, we affirm the administrative judge’s initial decision
dismissing this appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 2
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 seekin g 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 dec ision, 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
2
Since the issuance of the initial decision in this matter, the Board may have been
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.
5
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).
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
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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 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
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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
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. 3 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:
3
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.
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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.
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.