                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANGELA M. OPPE',                                DOCKET NUMBER
                  Appellant,                         DC-315H-15-0137-I-1

                  v.

     DEPARTMENT OF STATE,                            DATE: April 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Angela M. Oppe', New Castle, Washington, pro se.

           Anne Joyce, Esquire, and Julie Falis, 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 appeal of the agency’s termination during her probationary period
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        On February 17, 2010, the appellant was terminated from her position as a
     Contract Specialist, GS-01102-09, in the International Affairs Branch, Office of
     Logistics Management, Department of State, while serving a probationary period.
     Initial Appeal File (IAF), Tab 11 at 14, 18-19.     She had been given a career
     conditional appointment in the competitive service effective August 30,
     2009. Id. at 14. Her appointment was subject to a 1-year probationary period.
     Id. On February 16, 2010, the agency notified her that she would be terminated
     because she “failed to demonstrate [her] fitness and qualifications for continued
     employment . . . . [and] . . . failed to perform the duties of [her] position in an
     acceptable and satisfactory manner.” Id. at 18.
¶3        The appellant filed this appeal on October 30, 2014. 2 IAF, Tab 1. The
     administrative judge dismissed the appeal for lack of Board jurisdiction without a
     hearing. IAF, Tab 12, Initial Decision (ID) at 1-2, 6. Because the case was filed
     more than 4 years and 7 months after the filing period ended, see 5 C.F.R.

     2
       The appeal was postmarked October 30, 2014, and mailed to the Western Regional
     Office. The appeal was docketed in the Washington Regional Office on November 6,
     2014. IAF, Tab 1.
                                                                                          3

     § 1201.22(b)(1), the administrative judge noted that the appeal appeared to be
     untimely filed without good cause shown for the delay, but he declined to make a
     finding on that issue, see ID at 1 n.1. On review, the appellant challenges the
     validity of the initial decision. Petition for Review (PFR) File, Tab 1.
¶4        A career or career-conditional employee terminated during her 1-year
     probationary period, as was the appellant, has limited appeal rights. Persons in
     her status are specifically excluded from the definition of “employee” set forth
     at 5 U.S.C. § 7511(a)(1)(A). 3 Probationary employees, however, have been given
     some appeal rights by regulation.         See 5 C.F.R. §§ 315.803-315.806.           A
     probationary employee may appeal a termination taken for reasons arising after
     appointment if she can make a good faith allegation that the termination was
     based on partisan political reasons or marital status. 5 C.F.R. § 315.806(b).
     Further, a probationer terminated for reasons based wholly, or in part, on
     conditions arising before appointment, also may appeal her termination if she
     alleges that the agency failed to follow the specified procedural requirements
     of 5 C.F.R. § 315.805. See 5 C.F.R. § 315.806(c). If her termination is otherwise
     appealable under 5 C.F.R. § 315.806(b) or (c), she also may cite other forms of
     prohibited discrimination in her appeal. See 5 C.F.R. § 315.806(d). A terminated
     employee who appeals before the Board bears the burden of establishing the
     Board’s jurisdiction. See 5 C.F.R. § 1201.56(a)(2)(i).
¶5        The appellant did not allege pre-appointment reasons for her termination,
     nor did she allege that her termination was based on partisan political reasons or
     marital status. See IAF, Tab 1 at 7, 16-17. Instead, she argued in response to the
     administrative judge’s jurisdictional order that she was entitled to lifetime
     reinstatement rights and benefits as a 10-point preference-eligible veteran who

     3
       For jurisdictional purposes in a chapter 75 appeal, the term “‘employee’ means an
     individual in the competitive service 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.” 5 U.S.C.
     § 7511(a)(1)(A).
                                                                                          4

     had already served a probationary period, and that pursuant to 5 C.F.R.
     § 315.401(b), she should not have been required to serve a probationary period. 4
     IAF Tab 9 at 2-10. She argued that the agency ignored her September 28, 1979
     Standard Form (SF) 50, and substituted a “fraudulent” SF-52, which did not show
     she had completed her probationary period. See id. at 7, 12-15. The SF-50 and
     other personnel documents, she argued, show that she finished a probationary
     period at the Veterans Administration in February 1979, and that she resigned
     from civilian employment with the Puget Sound Naval Shipyard on September 28,
     1979, in order to re-enter military service. See id. at 7, 12-15; see also IAF,
     Tab 1 at 21-38. She argued that her 1978 and 1979 service, as well as service at
     the National Aeronautics and Space Administration (NASA) in 2004 and 2005,
     afforded her career status, and that the agency should have appointed her without
     requiring her to serve another probationary period.        IAF, Tab 9 at 3-4.      The
     appellant additionally referenced her previous appeal regarding probationary
     termination from NASA, effective February 15, 2005. She argued that the NASA
     appeal must be reconsidered along with the instant appeal, as the two appeals
     pertain to the same issue.      IAF, Tab 1 at 2-3, 15-20.        She reiterates these
     arguments on review. PFR File, Tab 1.
¶6        The appellant’s termination from NASA was previously adjudicated, and a
     Board administrative judge issued an initial decision in 2005. See Oppe’ v.
     National Aeronautics and Space Administration, MSPB Docket No. DC-315H-05-
     0351-I-1, Initial Decision (Apr. 28, 2005) (hereinafter Oppe’ I). Neither party
     filed a petition for review of that decision. She has not identified any unusual or
     extraordinary circumstances that would justify the Board’s reopening of that

     4
       Subject to part 335 of Title 5, Code of Federal Regulations (provisions for promotion
     and internal placement), an agency may reinstate to the competitive service a person
     who previously was employed under a career or career-conditional appointment (or
     equivalent). There is no time limit for the reinstatement eligibility of a preference
     eligible or a person who completed the service requirement for career tenure. 5 C.F.R.
     § 315.401(a)-(b).
                                                                                              5

     appeal.    See 5 C.F.R. § 1201.118.         In any event, the administrative judge
     dismissed as barred by collateral estoppel her concurrently-filed attempt to
     re-appeal her NASA termination. 5 See Oppe’ v. National Aeronautics & Space
     Administration, MSPB Docket No. DC-315H-15-0136-I-1, Initial Decision
     (Dec. 31, 2014). 6
¶7         As the administrative judge explained in Oppe’ I, the requirement for
     completion     of    1   year   of   current   continuous     service   under    5 U.S.C.
     § 7511(a)(1)(A)(ii) can only be satisfied by co mpleting such a period of
     employment immediately prior to the adverse action in question. See Fitzgerald
     v. Department of the Air Force, 108 M.S.P.R. 620, ¶ 7 (2008) (the Board,
     interpreting and applying the Office of Personnel Management’s regulations, has
     held that for competitive service employees, “current continuous service” means a
     period of employment or service immediately preceding an adverse action without
     a break in federal civilian employment of a workday); see also Oppe’ v. National
     Aeronautics and Space Administration, MSPB Docket No. DC-315H-05-0351-I-1,
     Initial Decision at 4 (Apr. 28, 2005). The period of civilian service upon which
     the appellant relies to support her jurisdictional argument here ended more than
     24 years before her NASA appointment and more than 30 years before her
     appointment with the Department of State.
¶8         As for the appellant’s contention that the agency failed to reinstate her to a
     career position without requiring her to serve a probationary period, the Board


     5
       The administrative judge also might have relied upon collateral estoppel in dismissing
     the instant appeal. See Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir.
     1988) (collateral estoppel, or issue preclusion, is appropriate when (1) an issue is
     identical to that involved in the prior action, (2) the issue was actually litigated in the
     prior action, (3) the determination on the issue in the prior action was necessary to the
     resulting judgment, and (4) the party precluded was fully represented in the prior
     action).
     6
       The appellant has filed a petition for review of the in itial decision in Oppe’ v.
     National Aeronautics & Space Administration, MSPB Docket No. DC-315H-15-0136-
     I-1.
                                                                                6

lacks jurisdiction over an agency’s decision not to reinstate an employee pursuant
to 5 C.F.R. § 315.401. See Hicks v. Department of the Navy, 33 M.S.P.R. 511,
512-13 (1987) (5 C.F.R. § 315.401 does not provide the Board with jurisdiction
over an agency’s alleged denial of reinstatement rights under that section); see
also Fesler v. Department of the Interior, 52 M.S.P.R. 660, 633 (1992). We also
note that the plain language of 5 C.F.R. § 315.401 is permissive rather than
mandatory, i.e., “an agency may appoint by reinstatement to a competitive service
position   a   person   who    previously   was   employed    under    career   or
career-conditional appointment (or equivalent).” 5 C.F.R. § 315.401(a) (emphasis
added).     As a general      matter, a person who is “given a career or
career-conditional appointment” must complete a 1-year probationary period.
See 5 C.F.R. § 315.801(a). The appellant’s probationary period would have run
for 1 year from her appointment on August 30, 2009, until August 29, 2010. She
was removed during that period.       She thus has not shown that she meets the
definition of “employee” set forth in 5 U.S.C. § 7511(a)(1)(A). Accordingly, we
find that the administrative judge correctly dismissed the appellant’s appeal for
lack of jurisdiction.

                 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
                                                                                  7

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 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.
