                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOYLYN A. BISHOP,                               DOCKET NUMBER
                   Appellant,                        DC-0752-15-0121-I-1

                  v.

     GENERAL SERVICES                                DATE: May 8, 2015
       ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Joylyn A. Bishop, North Bethesda, Maryland, pro se.

           Daniel D’Isidoro, Washington, D.C., 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 termination appeal for lack of jurisdiction because she was not an
     employee with a right of appeal to the Board. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        The appellant was appointed on March 26, 2012, to the position of Student
     Trainee (Management Analysis) in the excepted service.         Initial Appeal File
     (IAF), Tab 6 at 16. On January 2, 2014, the agency notified the appellant it was
     terminating her from her position effective January 3, 2014. Id. at 12, 14. The
     appellant initiated a Board appeal on November 3, 2014. IAF, Tab 1 at 1. The
     agency filed a motion to dismiss in which it asserted that: (1) the Board lacked
     jurisdiction over the appeal because the appellant was not an employee with
     appeal rights; and (2) the appeal was untimely filed. IAF, Tab 6 at 8-9. The
     administrative judge issued an order for the appellant to show that the Board has
     jurisdiction over her appeal. IAF, Tab 7. The appellant responded to the order
     and also filed a motion requesting that the administrative judge order the agency
     to continue paying her while her appeal was pending.        IAF, Tab s 8-10.    The
     administrative judge issued an initial decision dismissing the appeal for lack of
     jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1. The administrative judge
     found that, because the appellant was not a preference-eligible employee, she was
     required to serve a 2-year probationary or trial period in the excepted service. ID
                                                                                      3

     at 2. The administrative judge also found that, because the appellant was still
     serving her probationary or trial period, she did not have the right to bring an
     appeal to the Board. ID at 2-3. The administrative judge did not address the
     agency’s untimeliness argument because the Board lacked jurisdiction over the
     appeal. ID at 3.
¶3         The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. The appellant argues that her motion to continue to pay her
     wages during these proceedings was still pending before the Board. Id. at 4. The
     agency has filed a response.
¶4         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).          Only an “employee” as
     defined under 5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an
     adverse action such as a removal.        Ramirez-Evans v. Department of Veterans
     Affairs, 113 M.S.P.R. 297, ¶ 9 (2010); see 5 U.S.C. §§ 7511(a)(1), 7512(1),
     7513(d).    A nonpreference-eligible individual in the excepted service is an
     “employee” within the meaning of 5 U.S.C. § 7511 only if she: (1) is not serving
     a probationary or trial period under an initial appointment pending conversion to
     the competitive service; or (2) has completed 2 years of current continuous
     service in the same or similar positions in an executive agency under other than a
     temporary     appointment      limited   to   2   years     or   less.     5 U.S.C.
     § 7511(a)(1)(C)(i)-(ii).
¶5         Here, it is undisputed that the appellant was not a preference-eligible
     employee and that her position was in the excepted service. IAF, Tab 1 at 2,
     Tab 6 at 12. The administrative judge advised the appellant how to show she was
     an employee under these circumstances.        IAF, Tab 7.    The appellant does not
     dispute that she had less than 2 years of federal service at the time of her
     termination. PFR File, Tab 1; IAF, Tab 1 at 2, Tab 6 at 12. Thus, the appellant
     does not satisfy section 7511(a)(1)(C)(ii). In addition, section 7511(a)(1)(C)(i)
                                                                                               4

     does not apply because the appellant stated on her appeal form that she was
     serving a probationary or trial period at the time of her termination, and there is
     no indication she had an initial appointment pending conversion to the
     competitive service. IAF, Tab 1 at 2; see Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
     Accordingly, the appellant is not an “employee” who may appeal to the Board
     under 5 U.S.C. chapter 75. 2 See Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9.
¶6         The appellant alleged, moreover, that she had been harassed and that her
     termination was in reprisal for her making an equal employment opportunity
     complaint. IAF, Tab 1 at 4, 10. However, because the Board lacks jurisdiction
     over the appellant’s appeal, the Board also lacks jurisdiction over her
     discrimination claims.       See Rivera v. Department of Homeland Security,
     116 M.S.P.R. 429, ¶ 16 (2011) (finding that the Board lacked jurisdiction over the
     appellant’s age discrimination and due process claims in light of its lack of
     jurisdiction over the underlying termination); see also Wren v. Department of the
     Army, 2 M.S.P.R. 1, 2 (1980) (holding that prohibited personnel practices under
     5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,
     681 F.2d 867, 871 73 (D.C. Cir. 1982). Finally, the appellant cites no law, rule,
     or regulation that authorizes the Board to grant her motion for pay continuation;
     therefore, the Board must deny her motion because it lacks jurisdiction over her
     appeal. See Harris v. U.S. Postal Service, 89 M.S.P.R. 208, ¶ 4 (2001) (finding
     that the Board cannot order remedies in the absence of jurisdiction over the
     underlying personnel action).




     2
       In light of his finding that the Board lacks jurisdiction over the appellant’s claims, the
     administrative judge appropriately found that she need not reach the issue of timeliness.
     ID at 3; see Dean v. U.S. Postal Service, 115 M.S.P.R. 56, ¶ 13 n.5 (2010) (finding that
     because the appellant had failed to prove jurisdiction, the Board need not reach the
     issue of timeliness).
                                                                                  5

                   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.
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 an appeal to the
United States 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
                                                                                6

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.
