UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGELA M. OPPE',

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBER

DC-315H-15-0137-I-1

DATE: April 10, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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 completing 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 initial 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board