UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRENDA G. WATSON,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-315H-16-0649-I-1 

DATE: November 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Brenda G. Watson, Powder Springs, Georgia, pro se.

Amee Patel, Decatur, Georgia, 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 probationary 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 administrative 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 clos ed. 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, 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, a preference-eligible veteran, was appointed pursuant to a

Veterans Recruitment Appointment (VRA) to the excepted-service position of 

GS-5 Medical Support Assistant on November 15, 2015. Initial Appeal File 

(IAF), Tab 6 at 24. The appellant was subject to a 1-year trial period. Id. She 

was terminated effective June 23, 2016, for displaying inappropriate conduct and 

failing to maintain regular attendance. Id. at 13. The appellant filed the instant 

appeal, alleging, among other things, that she was terminated maliciously under 

false allegations, given assignments that were not consistent with her position, 

subjected to a hostile work environment, and retaliated against for filing 

discrimination complaints with the Equal Employment Opportunity Commission 

(EEOC). IAF, Tab 1 at 3, 10-13.

¶3 The administrative judge issued a jurisdictional notice that set forth the 

appellant’s jurisdictional burden under 5 U.S.C. § 7511(a)(1)(A), and ordered the 

appellant to file evidence or argument to establish why the appeal should not be 
3

dismissed for lack of jurisdiction.2 IAF, Tab 3. The appellant did not respond to 

the administrative judge’s order. The agency responded that the appellant was 

serving a trial period with no statutory right of appeal to the Board, and requested 

that the Board dismiss the appeal for lack of jurisdiction. IAF, Tab 6 at 6-7.

¶4 In her initial decision, the administrative judge dismissed the appeal for 

lack of jurisdiction, finding that it was undisputed that the appellant had less than 

1 year of service at the time of her termination and, therefore, she did not meet 

the statutory definition of an employee under 5 U.S.C. § 7511(a)(1)(B). IAF, 

Tab 8, Initial Decision (ID) at 2. The administrative judge also found that the 

appellant did not allege that her termination was based on partisan political 

reasons, marital status, or preappointment reasons. ID at 3. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. She reargues the merits of her termination, but does not make any 

arguments relating to Board jurisdiction. Id. The agency has responded to the 

appellant’s petition, arguing that the appellant has not alleged any errors in the 

initial decision and that the petition merely restates the allegations presented in 

the initial appeal. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75, 

subchapter II, an individual who meets the definition of “employee” at 5 U.S.C. 

 

2

In the jurisdictional order, the administrative judge described the appellant as a 

probationary employee in the competitive service. IAF, Tab 3. As noted, the appella nt 

was appointed to an excepted-service position under the VRA. Although in the 

excepted service, individuals appointed under the VRA are entitled to the same appeal 

rights during the first year of their trial periods as competitive -service employees. 

Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 18 (2011); 5 C.F.R. 

§ 307.105. Thus, although imprecise in her choice of language, the administrative 

judge correctly set forth the appellant’s jurisdictional burden and her imprecision did 

not prejudice the appellant. 
4

§ 7511(a)(1) generally has the right to challenge her removal from the Federal 

service by filing an appeal with the Board. Maibaum v. Department of Veterans 

Affairs, 116 M.S.P.R. 234, ¶ 9 (2011). To be considered an “employee” for the 

purposes of Board jurisdiction, a preference-eligible individual in the excepted 

service must have completed 1 year of current continuous service in the same or 

similar positions in an Executive agency, or the Postal Service or Postal 

Regulatory Commission. 5 U.S.C. § 7511(a)(1)(B); see Maibaum, 116 M.S.P.R. 

234, ¶ 9. 

¶7 Here, the appellant was appointed to her position on November 15, 2015, 

and the appointment was subject to a 1-year trial period. IAF, Tab 6 at 24. She 

was terminated effective June 23, 2016, approximately 6 months into the trial 

period. Id. at 13-14. Thus, as the administrative judge observed, it is undisputed 

that the appellant was terminated during the trial period. ID at 2; IAF, Tab 1 

at 2-3; IAF, Tab 6 at 6, 24. Furthermore, the appellant did not allege any other 

service that could be “tacked” to her service with the agency to meet the 

requirement for 1 year of “current continuous service.” Amend v. Department of 

Justice, 102 M.S.P.R. 614, ¶¶ 5-6 (2006). Accordingly, we agree with the 

administrative judge that the appellant was not an “employee” with a statutory 

right to appeal her termination to the Board. 

¶8 As noted, although in the excepted service, individuals appointed under the 

VRA are entitled to the same appeal rights during the first year of the ir trial 

periods as competitive-service employees and, therefore, by regulation, the 

appellant could appeal her termination on the ground that it was based on partisan 

political reasons, marital status, or preappointment reasons. Maibaum, 

116 M.S.P.R. 234, ¶ 18; 5 C.F.R. § 307.105. As correctly found by the 

administrative judge, the appellant did not claim that her termination was based 
5

on any of these reasons. ID at 3. She does not claim error in this regard on 

review. PFR File, Tab 1. Thus, we discern no basis for a finding of jurisdiction. 3

¶9 The appellant has provided several documents to support her petition for 

review, including character witness statements, reports of contact, and emails. Id. 

These documents provide no basis to disturb the initial decision because they are 

neither new nor material. Cf. 5 C.F.R. § 1201.115(d) (the Board may grant a 

petition for review if it contains new and material evidence). This evidence is not 

new because it all predates the initial decision, and it was either contained in the 

record below or lacks an explanation of why it previously was unavailable despite 

the appellant’s due diligence. See Meier v. Department of the Interior, 

3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the 

record is not new); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) 

(holding that the Board will not consider evidence submitted for the first time 

with the petition for review absent a showing that it was unavailable before the 

record was closed despite the party’s due diligence). This evidence is also not 

material because the appellant has not explained why she believes that it warrants 

an outcome different from that of the initial decision. See Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address: 

 

3 Because the Board has no jurisdiction over this termination appeal, the Board has no 

independent jurisdiction to adjudicate the appellant’s discrimination claims. See 

Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010); Wren v. Department 

of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
6

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. 

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 U.S. 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
7

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.

______________________________

Jennifer Everling

Acting Clerk of the Board