Jamaka Batts v. Department of Defense ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMAKA BATTS, DOCKET NUMBER
Appellant, DC-315H-16-0334-I-1
v.
DEPARTMENT OF DEFENSE, DATE: July 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Jamaka Batts, Newport News, Virginia, pro se.
Jason Snyder, Esquire, Ft. Lee, Virginia, 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
dismissed her probationary 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 erroneous interpretation of statute or regulation or the erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 On February 6, 2016, the appellant filed an appeal alleging that the agency
wrongfully terminated her from her competitive-service position during her
probationary period. Initial Appeal File (IAF), Tab 1 at 2, 5, 7, Tab 4 at 14. The
administrative judge advised the appellant that, as a probationary employee, the
Board might not have jurisdiction over her termination. IAF, Tab 2 at 3-4. She
ordered the appellant to file evidence or argument addressing the jurisdictional
issue. Id. at 4-5. In addition, the agency moved to dismiss the appeal on the
basis that the Board did not have jurisdiction because the appellant was a
probationary employee. IAF, Tab 4 at 7-8. The administrative judge provided
notice to the appellant that she could respond to the agency’s motion. IAF,
Tab 5. The appellant did not respond to either the administrative judge’s order or
the agency’s motion. The administrative judge dismissed the appeal for lack of
jurisdiction and denied the request for a hearing, finding that the appellant was a
probationary employee with no statutory right of appeal to the Board and had not
nonfrivolously alleged any cause of action that would otherwise enable the Board
to exercise jurisdiction over her claim. IAF, Tab 1 at 3, Tab 6, Initial Decision
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(ID) at 2-4. The appellant has filed a petition for review to which the agency has
not responded. Petition for Review (PFR) File, Tab 3 at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 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). The Board’s statutory
jurisdiction over a removal from the competitive service is limited to the removal
of an individual who is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less. See 5 U.S.C.
§ 7511(a)(1)(A); McCormick v. Department of the Air Force, 307 F.3d 1339,
1341 (Fed. Cir. 2002). The appellant bears the burden of proving by
preponderant evidence that the Board has jurisdiction over her appeal. 5 C.F.R.
§1201.56(b)(2)(i)(A).
¶4 The appellant conceded that she was a probationary employee with a total
of 11 months of Federal service. IAF, Tab 1 at 2, 5. Therefore, we agree with the
administrative judge that the Board does not have statutory jurisdiction over the
appeal. ID at 3. Nonetheless, under Office of Personnel Management
regulations, the Board may exercise jurisdiction over a probationary termination
if the employee makes nonfrivolous allegations that her termination was based on
discrimination due to partisan political reasons or marital status or that her
termination was based on pre-appointment reasons and was not effected in
accordance with the procedural requirements of 5 C.F.R. § 315.805. See 5 C.F.R.
§ 315.806; see also West v. Department of Health & Human
Services, 122 M.S.P.R. 434, ¶¶ 7-8 (2015); Jafri v. Department of the
Treasury, 68 M.S.P.R. 216, 219-21 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996)
(Table); Taylor v. Environmental Protection Agency, 61 M.S.P.R. 188, 192
(1994). The appellant did not advance any claims that would give the Board
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regulatory jurisdiction over her appeal. IAF, Tab 1; ID at 3. Her petition for
review also did not address the Board’s lack of jurisdiction. PFR File, Tab 3;
ID at 2. Because the appellant did not make nonfrivolous allegations of
circumstances that would bring her appeal within the Board’s jurisdiction, the
administrative judge properly dismissed the appeal without a hearing. Graham v.
Department of Justice, 50 M.S.P.R. 285, 288 (1991).
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. 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law and other sections of the U.S. 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.
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.