UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGELA HARVEY,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DC-315H-19-0486-I-1

DATE: February 23, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Angela Harvey, St. Leonard, Maryland, pro se.

Jonathan Mott and Trinh G. Warner, Joint Base Andrews, Maryland,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her termination appeal for lack of jurisdiction without a hearing.

Generally, we grant petitions such as these only in the following circumstances:

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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

discussed below, we FORWARD the appellant’s claim of whistleblower reprisal

to the regional office with instructions for the administrative judge to docket a

new Individual Right of Action (IRA) appeal. 

BACKGROUND

Effective May 1, 2017, the agency awarded the appellant a

career-conditional appointment to the competitive service position of GS -07

Contract Specialist, subject to a 2-year initial probationary period. Initial Appeal

File (IAF), Tab 1 at 7-8. On April 24, 2019, the agency terminated the appellant

for post-appointment reasons under 5 C.F.R. § 315.804. Id. at 11-13. On May 6,

2019, the appellant filed a Board appeal and requested a hearing, challenging the

merits of her termination and arguing that her termination was in reprisal for

whistleblowing and equal employment opportunity (EEO) activity. Id. at 2-5.

She attached a copy of a whistleblower complaint that she had filed with the

Office of Special Counsel (OSC) that same day. Id. at 14-25.

The administrative judge issued a jurisdictional order, notifying the

appellant of the standards for proving Board jurisdiction over her appeal under

5 U.S.C. chapter 75, 5 C.F.R. part 315, subpart H, and the Whistleblower

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Protection Act (WPA). IAF, Tab 3 at 2-6. He ordered her to file evidence and

argument on the jurisdictional issue. Id. at 6. After the appellant failed to

respond within the deadline, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 5,

Initial Decision (ID). The administrative judge found that the Board lacks

jurisdiction under 5 U.S.C. chapter 75 because the appellant did not fit the

definition of “employee” under 5 U.S.C. § 7511(a)(1)(A). ID at 3-5. He found

that the Board lacks jurisdiction under 5 C.F.R. § 315.806 because the appellant

did not allege that her termination was based on partisan political reasons or

marital status, and he found that the Board lacks jurisdiction under the WPA

because the appellant had not yet exhausted her administrative remedies with

OSC. ID at 5 & n.4. The administrative judge further found that, to the extent

that the appellant was claiming that her termination was based on other prohibited

personnel practices, the Board lacks jurisdiction over such claims absent an

otherwise appealable action. ID at 5-6.

The appellant has filed a petition for review, arguing that, under agency

regulations, her probationary period should have been 1 year rather than 2 years,

and otherwise challenging the merits of the termination. Petition for Review

(PFR) File, Tab 1 at 9. She has attached numerous documents to her petition for

review form. Id. at 10-134. The agency has not filed a response.

ANALYSIS

At the outset, we find that the appellant should have submitted to the

administrative judge the evidence and argument that she now submits for the first

time on review. Under 5 C.F.R. § 1201.115, the Board will not consider evidence

or argument presented for the first time in a petition for review absent a showing

that it was previously unavailable despite the party’s due diligence. Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has made no such

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showing here.2

 Nevertheless, under the particular circumstances of this case, we

find it appropriate to waive the regulatory requirement and consider the

appellant’s late-raised evidence and argument. See 5 C.F.R. § 1201.12.

The appellant does not challenge the administrative judge’s findings as

they pertain to the Board’s jurisdiction under 5 U.S.C. § 315.806 or the WPA.

For the reasons explained in the initial decision, we agree with these findings. ID

at 5 & n.2; see Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶¶ 20-21

(2014); Williams v. Department of Defense, 96 M.S.P.R. 335, ¶ 14 (2004). To the

extent that the appellant is contesting the administrative judge’s jurisdictional

findings regarding her discrimination and EEO retaliation claims, PFR File, Tab 1

at 9, we agree with the administrative judge that these do not provide an

independent source of Board jurisdiction, ID at 5-6; see 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).

Regarding the Board’s chapter 75 jurisdiction, the appellant argues that she

fits the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A)(i) because she

had already completed her 1-year probationary period at the time of her

termination. PFR File, Tab 1 at 9. Tacitly acknowledging the requirement of

10 U.S.C. §§ 111(b) and 1599e(a), that competitive service appointees in the

military departments serve a 2-year probationary period, the appellant argues that

Air Force Instruction 36-1001 § 3.1 provides that “[e]mployees who receive a

career or career-conditional appointment, and who have not previously completed

probation serve a one-year probationary period.” PFR File, Tab 1 at 9, 23. We

find, however, that this Air Force Instruction conflicts with the statute, which

2 Among the documents that the appellant has submitted are several Inspector General

complaints that she filed after the close of the record below. PFR File, Tab 1 at 86-91.

Although these documents may have been previously unavailable, the information

contained in them was not. To constitute new and material evidence, the information

contained in the documents, not just the documents themselves, must have been

unavailable despite due diligence when the record closed. Grassell v. Department of

Transportation, 40 M.S.P.R. 554, 564 (1989).

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imposes a mandatory 2-year probationary period. 10 U.S.C. § 1599e(a).3

 The

statute allows for the probationary period to be extended, but it does not allow for

it to be shortened. Id. Where there is an affirmative conflict between a statute

and an agency rule or regulation, the Board will follow the statute. Johnson v.

Department of Justice, 71 M.S.P.R. 59, 67 (1996). We therefore agree with the

administrative judge that because the agency terminated the appellant within

2 years of her appointment, she was not an “employee” with chapter 75 appeal

rights. ID at 3-5 & n.2; see 5 U.S.C. § 7511(a)(1)(A); 10 U.S.C. § 1599e(a), (d).

Nevertheless, we find it appropriate at this time to forward this case to the

administrative judge for consideration as an individual right of action (IRA)

appeal. The record shows that the appellant filed her OSC complaint on May 6,

2019, and when the initial decision was issued on May 16, 2019, 120 calendar

days had not elapsed and the appellant had not shown that OSC had terminated its

investigation into her allegations. Therefore, the administrative judge correctly

dismissed the IRA appeal for lack of jurisdiction. See Kochanoff v. Department

of the Treasury, 98 M.S.P.R. 405, ¶ 6 (2005). However, it is the Board’s practice

to adjudicate an appeal that was premature when it was filed but becomes ripe

while pending with the Board. Id., ¶ 7. Because more than 120 days have now

elapsed since the appellant’s May 6, 2019 whistleblower complaint to OSC, her

whistleblower claim is ripe for adjudication. See 5 U.S.C. § 1214(a)(3)(B); cf.

Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶¶ 7-8 (2007)

(remanding an IRA appeal for adjudication that was premature when filed but

ripened while the appeal was pending).

Accordingly, we forward the appellant’s IRA claim to the administrative

judge with instructions to docket a new IRA appeal.

3 The 2-year probationary period for DOD employees has been repealed, but only for

appointments made on or after December 31, 2022. Bryant v. Department of the Army,

2022 MSPB 1, ¶ 8.

5
NOTICE OF APPEAL RIGHTS4

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

4

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

6
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

8
disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

5 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

9
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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