                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JACQUELINE H. HERBST,                           DOCKET NUMBER
                   Appellant,                        DE-3443-15-0138-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: July 6, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jacqueline H. Herbst, Tularosa, New Mexico, pro se.

           Moira McCarthy, Phoenix, Arizona, 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. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 employed as a Senior Assistant Nurse Officer with the
     agency’s United States Public Health Service Commissioned Corps (USPHSCC)
     from mid-1997 until she was terminated, during her 3-year probationary period,
     in late 1999. Initial Appeal File (IAF), Tab 1 at 1-2, 8-9, 15, 22, 25.
¶3         On December 22, 2014, the appellant filed an appeal with the Board
     regarding her termination. 2 IAF, Tab 1. She asserted that she was terminated
     after she wrote to a State Board to get an opinion about whether she was “legally
     working within her ‘scope of practice.’” Id. at 2. She completed the box on her
     initial appeal form indicating that she wished to file an individual right of action
     appeal. Id. at 3. She attached a letter from the Office of Special Counsel (OSC),
     dated July 28, 2000, indicating that she had alleged to OSC “that the
     Commissioned Corps of the US Public Health Service ha[d] unjustly terminated

     2
       She also checked boxes indicating that she was appealing a removal; a reduction in
     grade, pay, or band; a failure to restore/reemploy/reinstate or an improper
     restoration/reemployment/reinstatement; and a negative suitability determination. IAF,
     Tab 1 at 2. We conclude from the record that this pro se appellant was confused about
     the meaning of these terms, which do not apply to her, and only intended to appeal her
     termination. Cf. Beverly v. U.S. Postal Service, 113 M.S.P.R. 51, ¶ 7 (2010).
                                                                                         3

     [her] because of [her] whistleblowing activities.”      Id. at 14.   She declined a
     hearing. Id. at 1.
¶4         The administrative judge issued an acknowledgment order, advising the
     appellant of her burden to file evidence and argument establishing the Board’s
     jurisdiction over her appeal. IAF, Tab 2 at 2-3. She informed the appellant that
     her appeal appeared to be outside the Board’s jurisdiction because she was not an
     employee in the civil service, as required to meet the definition of an employee
     under 5 U.S.C. § 2105, which applies for all purposes of Title 5. IAF, Tab 2 at
     2-3. The administrative judge subsequently issued an order advising the appellant
     that her appeal appeared to be untimely filed; setting forth the applicable
     timeliness requirements; directing the appellant to file evidence and argument to
     satisfy her burden of establishing that her appeal was timely filed, or that good
     cause existed for the delay; and also directing the agency to file any evidence in
     its possession relevant to the timeliness issue. IAF, Tab 3.
¶5         After receiving the parties’ responses regarding timeliness and jurisdiction,
     the administrative judge issued an initial decision dismissing the appeal. IAF,
     Tab 9, Initial Decision (ID). She found that the Board lacks jurisdiction because
     the appellant was never an employee under 5 U.S.C. § 2105, in that her position
     with USPHSCC was not in the civil service. ID at 2-3. In light of the dismissal
     of the appeal on jurisdictional grounds, she made no findings regarding
     timeliness. ID at 1 n.1.
¶6         The appellant has filed a petition for review, to which the agency has
     responded. 3 Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant

     3
       After the agency filed its response, the appellant submitted what appears to be a
     complete copy of the Board for Correction of USPHSCC Officer Records’ file
     concerning her termination, consisting of over 800 pages. Petition for Review (PFR)
     File, Tab 4. She proffered no explanation as to its relevance. We recognize that the
     appellant is pro se, but we are not obligated to act as her advocate by poring through
     this voluminous submission to ascertain whether it may have any relevance. See Keefer
     v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002). We note, however,
     that the appellant submitted these documents to the administrative judge, who reviewed
                                                                                           4

     appears to assert that she was never employed with USPHSCC because it “never
     got a release from the US Army for [her] commission.” PFR File, Tab 1 at 2, 7.
     She also reargues the merits of the termination action. In particular, she disputes
     USPHSCC’s allegations concerning her performance and conduct; discusses her
     work history and notes that she has an otherwise excellent record of service to the
     United States; recounts various incidents that occurred during her tenure with
     USPHSCC, which motivated her to contact the State Board regarding the scope of
     her practice; and requests that her record be expunged of all references to the
     termination action. Id. at 3-11.
¶7         Under 5 U.S.C. § 2105(a)(1), which applies for all purposes of Title 5
     unless explicitly indicated otherwise, an individual must be appointed in the civil
     service in order to meet the definition of an employee, among other criteria.
     Special   Counsel    ex   rel.   Hardy   v.   Department     of   Health   &    Human
     Services, 117 M.S.P.R. 174, ¶ 6 (2011). USPHSCC is explicitly excluded from
     the definition of civil service. 5 U.S.C. § 2101(1), (3); see Hardy, 117 M.S.P.R.
     174, ¶ 6. Thus, the appellant was not an employee under Title 5, and we lack
     jurisdiction to consider her termination appeal under 5 U.S.C. § 1221. 4            See
     Hardy, 117 M.S.P.R. 174, ¶¶ 6-7. We therefore affirm the administrative judge’s
     dismissal of this case for lack of jurisdiction. Because we lack jurisdiction, we
     cannot reach the appellant’s arguments regarding the merits of the termination
     action. Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir.

     them; included in the official record copies of the documents that appeared to relate to
     the Board’s jurisdiction over this appeal; and returned the remaining documents, which
     she determined did not relate to matters relevant to this appeal, to the appellant. IAF,
     Tab 1 at 3, 7, Tab 4; see PFR File, Tab 4 at 1-3.
     4
       The appellant’s speculation that a procedural impropriety occurred when she was
     appointed to her position with USPHSCC does not establish Board jurisdiction.
     Furthermore, because the appellant was not appointed in the civil service, she was not
     an “employee” entitled to protection under the Whistleblower Protection Enhancement
     Act (WPEA) or the Whistleblower Protection Act. See Hardy, 117 M.S.P.R. 174,
     ¶¶ 6-7 (to be an “employee” under 5 U.S.C. § 1221(a), an individual must meet the
     definition of “employee” under 5 U.S.C. § 2105(a)).
                                                                                   5

2000) (the Board cannot consider issues presented by a petitioner if the Board
lacks jurisdiction over the appeal).

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS 5
      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.
      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 want to request review of the Board’s decision concerning your
claims   of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not




5
 The initial decision did not afford the appellant notice of appeal rights under the
WPEA. We have provided notice of such appeal rights herein.
                                                                                      6

both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective          websites,          which             can        be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for your appeal to
the 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
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.
