UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARIELA SALAZAR,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DA-0752-14-0496-I-1

DATE: July 14, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Javier Pena, Esquire, Edinburg, Texas, for the appellant.

Lisa M. Ezra, Esquire, and Jennifer Petelle, Esquire, Laredo, 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

affirmed her removal from service. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 held an Agriculture Specialist position for the agency’s 

Bureau of Customs and Border Protection (CBP) in Laredo, Texas. Initial Appeal 

File (IAF), Tab 1 at 2, Tab 9 at 92. In June 2013, she was randomly selected for a 

drug test. See IAF, Tab 12 at 35. The results revealed the presence of cocaine. 

Id. at 44, 139. 

¶3 In August 2013, the agency charged the appellant with testing positive for a 

controlled substance in a random drug test and proposed her removal. Id. 

at 35-37. She responded in May 2014, after the agency granted numerous 

requests for extensions. IAF, Tab 9 at 99-162; see IAF, Tab 11 at 34-35. 

Subsequently, the agency issued its decision, removing the appellant from 

service. IAF, Tab 9 at 94-97.

¶4 The appellant filed the instant appeal. IAF, Tab 1. After holding the 

requested hearing, the administrative judge affirmed the agency’s action. IAF, 
3

Tab 25, Initial Decision. The appellant has filed a petition for review. 2 Petition 

for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.

¶5 In her petition, the appellant argues that the administrative judge erred by 

refusing to allow a representative to participate on the first day of the hearing, 

which resulted in one agency witness having to testify later by telephone, rather 

than by videoconference. 3

 PFR File, Tab 1 at 6. We disagree.

¶6 The appellant’s appeal was scheduled for 2 days of hearing, rather than 

1 day, to accommodate the deciding official’s scheduling conflict. See IAF, 

Tab 8 at 1, Tab 16 at 4-5, Tab 18 at 2. However, neither the appellant nor her 

designated representative appeared on the first hearing date, September 30, 2014, 

when the deciding official was scheduled to testify via videoconference. IAF, 

Tab 23 at 1. Instead, Chad Fulda of Heller and Fulda appeared, claiming to 

represent the appellant. Compare IAF, Tab 1 at 6, with IAF, Tab 23 at 1. 

Because Mr. Fulda was not the appellant’s designated representative, the 

administrative judge rescheduled the deciding official’s testimony for October 7, 

2014, to be taken telephonically. IAF, Tab 23 at 1. 

¶7 We first find no error in the administrative judge’s decision to reschedule 

the September 30, 2014 video hearing, rather than move forward on that day with 

Mr. Fulda as the appellant’s representative. The Board’s regulations provide that 

parties must designate their representatives in writing. 5 C.F.R. § 1201.31(a). 

Here, the record contained no designation from the appellant, written or 

 2 The appellant’s petition presents no substantive challenge to the administrative 

judge’s findings regarding the charge, nexus, or penalty, and we discern no basis for 

disturbing the administrative judge’s well-reasoned findings as to the same. See 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) 

(finding no reason to disturb the administrative judge’s findings when she considered 

the evidence as a whole, drew appropriate inferences, and made reasoned conclusions).

3 The appellant’s petition mistakenly cited the first day of hearing as September 15, 

2014. PFR File, Tab 1 at 6. However, the hearing at issue was scheduled for and 

attempted on September 30, 2014. IAF, Tab 23. September 15, 2014, was the date of a 

prehearing conference, at which the appellant’s representative failed to appear. IAF, 

Tab 18. 
4

otherwise, that Mr. Fulda was her representative. See IAF, Tab 1 at 6, Tab 20 

at 5, Tab 23 at 1.

¶8 We next find no basis to disturb the administrative judge’s decision to move 

forward with the deciding official’s testimony on October 7, 2014, via telephone. 

In some cases, the Board has found that it may be reversible error to allow 

telephonic testimony regarding disputed factual matters because of the obvious 

impediment to the ability to observe the demeanor of witnesses. Compare

Robertson v. Department of Transportation, 113 M.S.P.R. 16, ¶¶ 10, 13-15 (2009) 

(finding that the administrative judge erred in taking testimony via telephone over 

the appellant’s objection and that remand was necessary because the error had a 

potential adverse effect on her substantive rights), with Lowe v. Department of 

Defense, 67 M.S.P.R. 97, 99-101 (1995) (finding that the administrative judge 

erred by holding the hearing via telephone over the appellant’s objections, but 

finding remand unnecessary because there was no basis to find that the error had 

a potential adverse effect on her substantive rights). However, an administrative 

judge has wide discretion to control hearing proceedings. Parker v. Department 

of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). An appellant’s failure to 

timely object to an administrative judge’s rulings precludes her from doing so on 

review. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). 

¶9 As detailed above, the administrative judge cancelled the video testimony of 

the deciding official because neither the appellant nor her designated 

representative appeared for it. IAF, Tab 23 at 1. When the administrative judge 

rescheduled the testimony to be taken via telephone, she invited either party to 

file a written objection prior to the hearing. Id. at 1-2. However, the appellant 

failed to do so. Instead, she orally objected at the start of the hearing, requesting 

a continuance. IAF, Tab 24, Hearing Compact Disc. Because that objection was 

untimely, we need not address it further on review. See Wagner v. Environmental 

Protection Agency, 54 M.S.P.R. 447, 453 (1992) (finding that because the 

appellant did not object to the hearing schedule change prior to the hearing, he 
5

failed to preserve the alleged error for the Board’s review), aff’d, 996 F.2d 1236

(Fed. Cir. 1993).

¶10 Similarly, we need not address the appellant’s remaining arguments. In her 

petition for review, the appellant alleges that the agency used an outdated 

Drug-Free Workplace plan when it effectuated her removal, failed to notify her of 

the updated plan, and failed to comply with that updated plan. 4

 PFR File, Tab 1 

at 6. The Board generally will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant failed to 

present the aforementioned allegations pertaining to the appropriate Drug-Free 

Workplace plan below. See IAF, Tab 18 at 1-3, Tab 21 at 4-6. Because the 

appellant has not explained her failure to raise the arguments before the 

administrative judge, we do not address them for the first time on review.

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 

 4 Although the appellant’s petition cited 2002 and 2013 as the dates of the respective 

Drug-Free Workplace policies, PFR File, Tab 1 at 6, it appears that she intended to 

refer to 2002 and 2012 policies, both of which were included in the agency’s file below, 

see IAF, Tab 12 at 165-97 (2012 Drug-Free Workplace Plan), 222-76 (2002 Drug-Free 

Workplace Plan). 
6

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 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board