                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     EDITH MARSALIS,                                 DOCKET NUMBER
                  Appellant,                         CH-3443-14-0830-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: April 28, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Edith Marsalis, Raytown, Missouri, pro se.

           Melissa S. Luckett, Esquire, Dallas, Texas, 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 appeal 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 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse o f 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant is a seasonal tax examiner with the agency. Initial Appeal
     File (IAF), Tab 1.     She appealed the agency’s decision to charge her with
     absences without leave (AWOL) for 71 hours because she contended that she had
     been granted leave under the Family and Medical Leave Act of 1993 (FMLA).
     Id.; see IAF, Tab 6 at 4, 8-11 (memoranda charging the appellant with AWOL).
     The administrative judge ordered the appellant to present evidence and argument
     that her appeal was within the Board’s jurisdiction.       IAF, Tab 2 at 2.     The
     appellant responded, claiming that the agency’s actions were a prohibited
     personnel practice under 5 U.S.C. § 2302(b)(1), were motivated by discrimination
     based on her disability and retaliation, and violated the FMLA. IAF, Tab s 1, 5.
     The agency filed a motion to dismiss, asserting that the Board lacked jurisdiction
     because the appellant had not alleged an appealable action and because her
     election to file a grievance precluded her from also filing a Board appeal. IAF,
     Tab 10 at 3-5.    In her initial decision, the administrative judge dismissed the
     appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision. The appellant has
     filed a timely petition for review in which she reasserts her arguments from
                                                                                            3

     below. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
     PFR File, Tab 3.
¶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 existence of Board
     jurisdiction is a threshold issue in adjudicating an appeal, and the appellant bears
     the burden of establishing jurisdiction by preponderant evidence. 2 Morales v.
     Social Security Administration, 108 M.S.P.R. 583, ¶ 5 (2008); 5 C.F.R. § 1201.56
     (a)(2)(i).    In the absence of an otherwise appealable action, the Board lacks
     jurisdiction to hear claims of prohibited personnel practices. Wren v. Department
     of the Army, 2 M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶4         The Board has jurisdiction to hear claims concerning certain adverse actions
     taken by an agency against its employees. 5 U.S.C. § 7512. However, the United
     States Court of Appeals for the Federal Circuit has held that where an employee
     was voluntarily absent from work the Board does not have jurisdiction over her
     placement      in   an   AWOL     status.    Perez   v.   Merit   Systems      Protection
     Board, 931 F.2d 853, 855 (Fed. Cir. 1991). The appellant does not contend that
     her absence was involuntary, and the record reflects that she requested general
     approval to take FMLA leave. See IAF, Tab 1, Tab 6 at 3. Accordingly, we
     agree with the administrative judge that the Board lacks jurisdiction over the
     appellant’s claim that the agency placed her in an AWOL status. In the absence
     of an otherwise appealable action, the Board lacks jurisdiction to review the
     appellant’s     claims   of   general   prohibited   personnel    practices,   disability
     discrimination, and retaliation. Penna v. U.S. Postal Service, 118 M.S.P.R. 355,
     ¶ 13 (2012).        Additionally, because the Board does not otherwise have
     jurisdiction over this appeal, we do not address the appellant’s claim that the

     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                         4

agency violated the FMLA. 3 See Lua v. U.S. Postal Service, 87 M.S.P.R. 647,
¶ 12 (2001) (although the Board adjudicates claims that an agency failed to
comply with the FMLA in leave-related adverse action appeals, because the
Board lacked jurisdiction over the appellant’s disciplinary action claims, the
Board would not address the appellant’s claim that the agency violated the
FMLA).

                 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).
      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.

3
  Because we find that the Board does not have jurisdiction over this appeal due to the
absence of an appealable action, we do not address the agency’s alternative argument
that the appellant’s election to file a grievance precludes her from filing a Board appeal.
See IAF, Tab 10 at 4.
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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.
