                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ISAAC RODRIGUEZ,                                DOCKET NUMBER
                  Appellant,                         DA-315H-13-0294-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: March 3, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Dennis Schneider, Esquire, Austin, Texas, for the appellant.

           Robert H. Moore, Esquire, Del Rio, Texas, 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 that
     dismissed his appeal, which the administrative judge construed as a probationary
     termination appeal, for lack of jurisdiction. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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
     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.       Except as
     expressly modified by this Final Order, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        Effective December 19, 2011, the agency appointed the appellant to a
     competitive service Customs and Border Protection Officer position, GS-7,
     subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 4, Subtab
     4k. The agency subsequently terminated the appellant, effective December 11,
     2012, based on its determination that he was unsuitable for his position due to
     derogatory information discovered during the course of his background
     investigation.   IAF, Tab 4, Subtabs 4d-4e.      The agency’s termination notice
     informed the appellant that, pursuant to 5 C.F.R. Part 731, he could appeal its
     suitability action to the Board.    IAF, Tab 4, Subtab 4d at 2.       However, the
     Standard Form 50 documenting the appellant’s termination cited 5 C.F.R.
     § 315.804, the authority for probationary terminations, as the authority for the
     agency’s action. IAF, Tab 4, Subtab 4e.
¶3        The appellant filed an appeal of his termination to the Board. See MSPB
     Docket No. DA-0731-13-0126-I-1, Initial Decision (ID-0126) (Feb. 22, 2013).
     The administrative judge construed his appeal as a suitability appeal and
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     adjudicated it accordingly.     ID-0126.    She dismissed the appeal for lack of
     jurisdiction, finding that the agency acted outside the scope of its delegated
     authority in making the suitability determination and that the Board only has
     jurisdiction to review suitability determinations made within the scope of an
     agency’s delegated authority.      ID-0126 at 6-7.    The appellant did not file a
     petition for review of the initial decision in MSPB Docket No. DA-0731-13-0126-
     I-1 and the decision thus became the final decision of the Board. See Petition for
     Review (PFR) File, Tab 12 at 5 (the appellant stating that he “did not appeal the
     decision because [the administrative judge’s] authority to take the action
     dismissing the appeal was legally correct and in accordance with Board
     regulations and past precedent”); see also 5 C.F.R. § 1201.113.
¶4           The appellant thereafter filed the instant appeal, indicating on his initial
     appeal form that it concerned his termination during his probationary period.
     IAF, Tab 1.      The administrative judge 2 informed the appellant of the limited
     circumstances under which the Board has jurisdiction over probationary
     terminations and of how to establish that he was not a probationer at the time of
     his termination, and ordered him to file evidence and argument regarding the
     same.      IAF, Tab 2 at 2-5.      After considering the parties’ responses, the
     administrative judge issued an initial decision based on the written record. 3 IAF,
     Tab 11, Initial Decision (ID-0294).        She dismissed the appeal for lack of
     jurisdiction, finding that:    (1) the agency terminated the appellant under the
     authority of 5 C.F.R. Part 315; (2) the appellant failed to establish that he was an
     employee within the meaning of 5 U.S.C. § 7511(a)(1) at the time of his
     termination; and (3) the appellant failed to establish any basis for finding Board
     jurisdiction under 5 C.F.R. Part 315. ID-0294.

     2
      The administrative judge in the instant appeal is not the same administrative judge
     who adjudicated the appellant’s appeal in MSPB Docket No. DA-0731-13-0126-I-1.
     3
       The appellant requested a hearing. IAF, Tab 1 at 2. We find that no hearing is
     necessary.
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¶5         The appellant has filed a petition for review. PFR File, Tab 1. He argues
     that: (1) the agency removed him under 5 C.F.R. Part 731, not 5 C.F.R. Part 315;
     (2) the agency should have reinstated him pursuant to the finding, in MSPB
     Docket No. DA-0731-13-0126-I-1, that it acted outside of its delegated authority
     in making its suitability determination; (3) he is an employee with Board appeal
     rights under 5 U.S.C. chapter 75 because the decision in MSPB Docket No.
     DA-0731-13-0126-I-1 “has the legal effect of granting him service credit for the
     time he was illegally removed,” such that he has completed his probationary
     period; and (4) the agency’s failure to reinstate him violates his due process
     rights. PFR File, Tab 1. The agency has filed a response in opposition, and the
     appellant has filed a reply. PFR File, Tabs 3-4.

                                          ANALYSIS
¶6         The Board lacks jurisdiction over the appellant’s termination.           In what
     became the Board’s final decision in MSPB Docket No. DA-0731-13-0126-I-1,
     the administrative judge determined that the Board lacks jurisdiction over the
     appellant’s termination under 5 C.F.R. Part 731 because the agency acted outside
     the scope of its delegated authority in making the suitability determination.
     ID-0126.    To the extent that the appellant is seeking to again challenge the
     agency’s suitability determination, the doctrine of collateral estoppel bars him
     from doing so. See Harris v. U.S. Postal Service, 119 M.S.P.R. 583, ¶ 6 (2013)
     (collateral estoppel precludes a party from relitigating an issue when: (1) the
     issue is identical to one in a prior action; (2) the issue was actually litigated in the
     prior action; (3) the previous determination of that issue was necessary to the
     resulting judgment; and (4) the party against whom issue preclusion is sought had
     a full and fair opportunity to litigate the issue in the prior action, either as a party
     to the earlier action or as one whose interests were otherwise fully represented in
     that action.).
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¶7         Further, the administrative judge correctly determined that the Board lacks
     jurisdiction over the appellant’s appeal as a probationary termination appeal. The
     undisputed record evidence reflects that, at the time of his termination, the
     appellant was a probationary employee in the competitive service with less than 1
     year of current continuous service. See IAF, Tab 1, Tab 5, Subtabs 4d-4e, 4k.
     Consequently, the appellant could only bring an appeal of his termination under
     limited circumstances. See Blount v. Department of Treasury, 109 M.S.P.R. 174,
     ¶ 5 (2008); 5 C.F.R. §§ 315.805, 315.806. As the administrative judge explained,
     the appellant does not allege any of these limited circumstances, such as that the
     agency discriminated against him based on partisan political reasons or marital
     status, or that his termination was based on pre-employment reasons. ID-0294 at
     6.   Therefore, the administrative judge correctly found that the Board lacks
     jurisdiction over this appeal as a probationary termination appeal.
¶8         To the extent that the appellant argues that, pursuant to the Board’s final
     decision in MSPB Docket No. DA-0731-13-0126-I-1, he is an employee with
     chapter 75 Board appeal rights, we disagree. The appellant specifically asserts
     that the Board’s final decision in his prior appeal “has the legal effect of granting
     him service credit for the time he was illegally removed,” such that he has
     completed his probationary period.         The decision in MSPB Docket No.
     DA-0731-13-0126-I-1, however, did not include any order for relief, such as
     retroactively restoring the appellant to duty, providing him a service credit, or
     otherwise voiding the agency’s negative suitability determination. Indeed, as the
     appellant acknowledges, the Board had no authority to order relief in that matter
     because it lacked jurisdiction over the appeal. See Gessert v. Department of the
     Treasury, 114 M.S.P.R. 471, ¶ 5 (2010) (once the Board has determined that it is
     without jurisdiction to entertain an appeal, it lacks jurisdiction to make any other
     determinations or grant any relief with regard to that appeal), aff’d, No.
     2010-3115, 2011 WL 463094 (Fed. Cir. 2011); see also PFR File, Tab 1 at 16 (the
     appellant stating that the administrative judge “could not order the [a]gency to
                                                                                      6

     reinstate [him] because she had to dismiss the appeal on jurisdictional grounds”).
     The appellant does not cite and we are unaware of any Board or U.S. Court of
     Appeals for the Federal Circuit precedent that requires an agency to retroactively
     restore an employee after the Board dismisses a negative suitability determination
     for lack of jurisdiction. Accordingly, we find that the Board’s decision in the
     appellant’s prior appeal did not order relief or otherwise qualify the appellant as
     an employee with chapter 75 Board appeal rights.
¶9        Finally, to the extent that the appellant asserts that the agency failed to
     comply with the Board’s decision in MSPB Docket No. DA-0731-13-0126-I-1, he
     may wish to assert such arguments in a petition for enforcement filed with the
     regional office. See 5 C.F.R. § 1201.181-.182. However, as we noted above, the
     Board’s prior decision did not order any relief and did not contain a notice of the
     Board’s enforcement authority. See id.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
          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 have the right to
     request the United States Court of Appeals for the Federal Circuit to review this
     final decision.   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
                                                                                  7

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).
     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.
