                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARNE K. MITSKOG,                               DOCKET NUMBER
                  Appellant,                         DC-0752-14-0478-I-1

                  v.

     FEDERAL ELECTION                                DATE: January 26, 2015
       COMMISSION,
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Marne K. Mitskog, Arlington, Virginia, pro se.

           Deborah M. Foresman, and Robert Kahn, Washington, D.C., 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, 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2         The appellant was appointed to an excepted service position as an attorney
     in the agency’s Office of General Counsel. Initial Appeal File (IAF), Tab 8 at 92.
     The agency terminated the appellant approximately 19 months after her
     appointment for conduct unbecoming a federal employee. 2 Id. at 35-36, 42-49.
     The appellant appealed her termination. IAF, Tab 1. After affording the parties
     an opportunity to address the matter of Board jurisdiction, IAF, Tab 3, the
     administrative judge dismissed the appeal for lack of jurisdiction in an initial
     decision, IAF, Tab 16, Initial Decision (ID). The administrative judge noted that
     the appeal also appeared to be untimely but did not address this issue as he found
     that the appellant had failed to establish jurisdiction. ID at 7 n.5.

     2
       We note that Article 46, Section 1 of the Labor Management Agreement between the
     agency and the union specifies that agency employees will serve only a 1-year
     probationary period. IAF, Tab 8 at 16. Accordingly, the agency stated in its narrative
     response that, based upon its interpretation of the agreement, although it originally
     terminated the appellant as a probationary employee, it later rescinded this termination
     and eventually issued a notice of removal. Id. at 6 n.1; see id. at 42-49, 113-15.
                                                                                            3

¶3         The appellant petitions for review, arguing, as she did below, that the Board
     has jurisdiction over her appeal because the agency terminated her based upon
     conditions that arose prior to her employment and because the agency consented
     to jurisdiction through its Labor Management Agreement. Petition for Review
     (PFR) File, Tab 1 at 1-3; see IAF, Tab 9 at 5-6, Tab 10 at 3. She also argues, as
     she did below, that the National Finance Center and BENEFEDS incorrectly
     displayed her employment status, which may reflect false statements by the
     agency or the fact that the agency rehired her and then unlawfully terminated her
     employment. PFR File, Tab 1 at 3-5; see IAF, Tab 5 at 3-5, Tab 9 at 4-5. The
     appellant further states that the Board has jurisdiction over her appeal
     under 5 C.F.R. § 9901.512(a)(7). PFR File, Tab 1 at 2; see IAF, Tab 5 at 2. She
     presents additional arguments, as she did below, that her appeal was timely, that
     her termination was not in accordance with law and was a prohibited personnel
     practice, that the agency violated her First Amendment rights, and that the agency
     violated the Privacy Act. PFR File, Tab 1 at 2-6; see IAF, Tab 5 at 4, Tab 9
     at 2-3, 5, Tab 10 at 3.      Finally, the appellant alleges factual errors by the
     administrative judge including an incorrect statement that she had not submitted
     her Notice of Personnel Action with her appeal.          PFR File, Tab 1 at 4.      The
     agency has submitted a response, PFR File, Tab 3, and the appellant has
     submitted a reply, PFR File, Tab 5. 3

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         We find that the administrative judge was correct that the Board does not
     have jurisdiction over this appeal. Only an “employee,” as defined by 5 U.S.C.
     § 7511, can appeal to the Board from an adverse action such as a removal. The
     appellant is a nonpreference eligible who was in the excepted service.              IAF,


     3
       To the extent that the appellant attempts to include new evidence on review, we find
     that this evidence is not new and material and therefore do not consider it. See 5 C.F.R.
     § 1201.115(d).
                                                                                     4

     Tab 8 at 35. As a nonpreference eligible individual in the excepted service, she
     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);   see   Ramirez-Evans    v.    Department   of   Veterans
     Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). There is no indication that the appellant
     held an initial appointment pending conversion to the competitive service. Thus,
     the appellant can qualify as an “employee” only if she had 2 years of current
     continuous service. See 5 U.S.C. § 7511(a)(1)(C)(ii).
¶5        It is undisputed that the appellant was terminated less than 2 years after
     beginning her employment with the agency. Additionally, although the appellant
     had prior service at another agency, IAF, Tab 8 at 128, the record reflects, and
     the appellant does not dispute, that she had a break in federal service of over
     1 year, see IAF, Tab 8 at 116. The Board has held that, with respect to both
     competitive and excepted positions, the term “current continuous service” means
     service immediately prior to the action at issue without a break in service of a
     work day. Yeressian v. Department of the Army, 112 M.S.P.R. 21, ¶ 10 (2009).
     Because the appellant had a break in service of over a year, she may not tack her
     prior service on to her service with the agency and therefore does not meet the
     2-year service requirement. See Roy v. Department of Justice, 115 M.S.P.R. 669,
     ¶¶ 6-8 (2011), aff’d, 672 F.3d 1378 (Fed. Cir. 2012). Thus, the appellant is not
     an “employee” with the right to appeal her removal under chapter 75.
¶6        The appellant argues that she was terminated for preappointment reasons
     and that the Board therefore has jurisdiction over this appeal under 5 C.F.R.
     § 315.805, 806. PFR File, Tab 1 at 2-3. This regulatory right to appeal applies
     only to individuals in the competitive service.    Ramirez-Evans, 113 M.S.P.R.
     297, ¶ 10. Therefore, because the appellant served in an excepted appointment,
                                                                                    5

     she has no right to appeal under 5 C.F.R. § 315.806. The appellant’s analogous
     argument that the Board has jurisdiction over her termination based upon
     preappointment reasons under 5 C.F.R. § 9901.512(a)(6) is also without merit.
     This regulation applied only to certain competitive service Department of
     Defense employees and was rescinded prior to the appellant’s termination.
     National Security Personnel System, 76 Fed. Reg. 81,359 (Dec. 28, 2011).
¶7        The appellant’s argument that the agency waived the jurisdictional
     requirements through additional procedural safeguards that were provided in the
     Labor Management Agreement is also without merit. PFR File, Tab 1 at 2-3.
     We note that the agency’s termination letter provided the appellant with Board
     appeal rights. IAF, Tab 8 at 45-46. However, the agency cannot confer Board
     jurisdiction where jurisdiction does not otherwise exist. Waldrop v. U.S. Postal
     Service, 72 M.S.P.R. 12, 15 (1996).      Accordingly, the Board does not have
     jurisdiction, regardless of additional rights provided in the agreement or
     mistakenly provided with the termination letter.
¶8        We also have considered the appellant’s arguments that the agency violated
     both her First Amendment rights and the Privacy Act and committed both
     harmful error and prohibited personnel practices.     PFR File, Tab 1 at 1-6.
     However, the Board has no jurisdiction to review constitutional claims absent an
     otherwise appealable action. Smith v. Department of Defense, 106 M.S.P.R. 228,
     ¶ 13 (2007).   The Board also does not have jurisdiction to review alleged
     violations of the Privacy Act when the allegations are not material to an issue
     that is properly before it.   Young v. U.S. Postal Service, 113 M.S.P.R. 609,
     ¶¶ 40-41 (2010). Finally, absent an otherwise appealable action, the Board lacks
     jurisdiction over claims of harmful error and prohibited personnel practices. See
                                                                                         6

     Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012).              The Board
     therefore does not have jurisdiction to consider these arguments. 4
¶9        We have considered the appellant’s remaining arguments including her
     challenge to the administrative judge’s factual determinations and her arguments
     concerning the agency’s reporting to the National Finance Center and
     BENEFEDS.        PFR File, Tab 1 at 4-6.     However, as these arguments are not
     material to the issue of whether the Board has jurisdiction, we do not address
     them.

                      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.

     4
       Because we find that the Board does not have jurisdiction, we need not address
     whether the appeal was timely filed. See Colligan v. Department of the Army,
     36 M.S.P.R. 547, 548 n.1 (1988); see also Key v. U.S. Postal Service, 82 M.S.P.R. 628,
     ¶ 16 (1999).
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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.
