UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CARLA R. BLUMER, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH

- 315H

- 14

- 0579

- I

- 1

DATE: October 30, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Carla R. Blumer , Oregon, Wisconsin, pro se.

Jack R. Jakubiak , Esquire, Milwaukee, Wisconsin, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed he r probationary termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only when: the initial decision contains

* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

erroneous finding s of material fact; the initial decision is based on an erroneous 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 w ere 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 avai lable 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 pe tition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113 (b).

BACKGROUND ¶2 Effec tive June 30, 2013, the agency appointed the appellant to a

career

- conditional position in the competitive service as a GS

- 06 Medical
Reimbursement Technician, subject to her completion of a 1

- year probationary period. Initial Appeal File (IAF), Tab 4 at 7. By letter dated May 12, 2014, the agency notified the appellant of its decision to terminate her effective May 16, 2014, for fail ure to meet her performance expectations. Id. at 8

- 10

. ¶3 The appellant filed a Board appeal challenging h er probationary t ermination and requested a hearing. IAF, Tab 1. The appellant alleged that she did not receive the required training to “obtain optimal productivity.” Id. at 5. In an acknowledgement order, the administrative judge informed the appellant of the
limited Board appeal rights of probationary employees and ordered h er to submit evidence or argument to establish why the appeal should not be dismissed for lack of a nonfrivolous allegation of jurisdiction

. IAF, Tab 2. The appellant did not3

file a response to the order. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 4 at 4

- 6

. ¶4 Without holding the requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction . IAF, Tab 5 , Initial Decision (ID). The administrative judge found that the appellant did not have the right to appeal her
termination because
, at the time of her termination, she was a probationary employee w ith less than 1 year o f current continuous service
, and she did not allege that the age ncy discriminated against her based on partisan political reasons or marital status, or that her termination was based on pre

- employment

matters. ID at 2

- 3

. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has not responded to the petition for review.

ANALYSIS The Board need not consider the appellant’s arguments regarding the merits of her appeal

. ¶6 In her petition for review, the appellant argues the merits of her case, reiterating her argument from below that she did not receive proper training. PFR File, Tab 1 ; IAF, Tab 1 at 5

. However, these arguments are not relevant to the issue currently before the Board

— whether the Board has jurisdiction over this appeal. See Fassett v. U.S. Postal Service
, 76 M.S.P.R. 137 , 139 (1997) (arguments on review that address the merits of the agency’s removal action, rather than the Board’s jurisdiction over the appeal, do not meet the crite ria for review).
The administrative judge correctly dismissed the appeal for lack of jurisdiction. ¶7 It is undisputed that, at the time of her termination, the appellant was a probationary employee in the competitive service with less than 1 year of current continuous service. IAF, Tab 1 at 1, 3 , Tab 4 at 7 . Consequently, the appellant could only bring an appeal of her termination under limited circumstances.4

Blount v. Department of the Treasury
, 109 M.S.P.R. 174 , ¶ 5 (2008); 5 C.F.R. §§ 315.805 , 315.8 06. ¶8 As the administrative judge explained, the appellant does not allege any of these circumstances, such as that the agency discriminated against her based on partisan political reasons or marital status, or that her termination was based on

pre

- employmen t matters. ID at 3 . Therefore, the administrative judge correctly found that the Board does not have jurisdiction over this appeal.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision b y 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 yo ur 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 ou r 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 and5

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