UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANGELA M. OPPÉ,

Appellant,

v.

NATIONAL AERONAUTICS AND 

SPACE ADMININSTRATION,

Agency.

DOCKET NUMBER

DC-315H-15-0136-I-1

DATE: May 19, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Angela M. Oppé, New Castle, Washington, pro se.

David S. Schuman, Greenbelt, Maryland, 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 her probationary termination for lack of jurisdiction 

based on the doctrine of collateral estoppel. Generally, we grant petitions such as 

this one only when: the initial decision contains erroneous findings of material 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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. Except as 

expressly modified by this Final Order, we AFFIRM the initial decision. 2

¶2 The appellant filed this appeal challenging her termination while serving a 

probationary period.

3 Initial Appeal File (IAF), Tab 1. She was appointed by the 

National Aeronautics and Space Administration (NASA) as a Resources Analyst, 

GS-0501-12, effective March 8, 2004, subject to a 1-year probationary period. 

Oppé v. National Aeronautics & Space Administration, MSPB Docket No. 

DC-315H-05-0351-I-1, Initial Decision at 2 (Apr. 28, 2005) (hereinafter Oppé I). 

She was terminated effective February 15, 2005. Id. Her termination was the 

subject of a prior appeal that the administrative judge dismissed for lack of 

jurisdiction. See id. at 1, 5. She did not file a petition for review, and the initial 

decision became the Board’s final decision. Based on the parties’ written 

 2 Some of the dates in the initial decision are inaccurate. We have corrected the initial 

decision here in that respect.

3 This appeal was filed more than 30 days after the appellant’s receipt of the decision 

terminating her employment. See 5 C.F.R. § 1201.22(b). The administrative judge 

made no findings on the issue of timeliness. Initial Appeal File, Tab 10, Initial 

Decision (ID) at 1 n.1. Because the Board lacks jurisdiction over the appeal, he found 

it unnecessary to reach that issue. Id.
3

submissions, the administrative judge found that the appeal was barred by 

collateral estoppel and dismissed it.

4

 IAF, Tab 10, Initial Decision (ID) at 3-5.

¶3 On review, the appellant claims that the administrative judge failed to 

consider evidence of which she had recently become aware. See Petition for 

Review (PFR) File, Tab 1 at 4-6. She asserts that she learned that, after it

terminated her in 2005, NASA removed from her Official Personnel File a 

September 28, 1979 Standard Form (SF) 50, which showed that she was a tenured 

employee who resigned to enter the U.S. Navy, and it substituted a “fraudulent” 

SF-52, which did not show that she had completed her probationary period. PFR 

File, Tab 1 at 4-6, 8, 13-14, 28-31; see Oppé v. Department of State, MSPB 

Docket No. DC-315H-15-0137-I-1, Final Order, ¶ 5 (Apr. 10, 2015) (hereinafter 

Oppé II). In 2010, the appellant was terminated from a 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. Oppé II, 

¶ 2. In her State Department appeal, she contended that the September 28, 1979 

SF-50 shows that she is entitled to lifetime reinstatement rights and benefits 

pursuant to 5 C.F.R. § 315.401(b) as a 10-point preference-eligible veteran who 

has already served a probationary period.5 Oppé II, ¶ 5.

¶4 The administrative judge, however, did not fail to consider the appellant’s 

assertion that she had completed a probationary period during a prior period of 

federal employment. Extensive documentation regarding that issue is in the 

 4 The appellant requested a hearing, but the administrative judge found that she had

failed to raise a nonfrivolous allegation which, if proven, could bring the appeal within 

the Board’s jurisdiction. ID at 1-2 n.2.

5 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).
4

record. See IAF, Tab 1, Enclosure (Encl.) 2. Even so, however, he found that the 

issue of jurisdiction to be precluded by the 2005 appeal.

¶5 Issue preclusion, or collateral estoppel, bars the relitigation of an issue in a 

Board appeal when: (1) an issue is identical to the one involved in a prior appeal; 

(2) the issue was actually litigated in the prior appeal; (3) the determination on 

the issue in the prior appeal was necessary to the resulting judgment; and (4) the 

party precluded was fully represented in the prior action. McNeil v. Department 

of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). Further, collateral estoppel may bar a 

party from relitigating the issue of jurisdiction in a second appeal when the prior 

appeal was dismissed for lack of Board jurisdiction as it was here. See Noble v. 

U.S. Postal Service, 93 M.S.P.R. 693, ¶¶ 10-11 (2003) (collateral estoppel may be 

grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional 

determination in a prior decision is afforded collateral estoppel effect and the 

appellant provides no other valid basis of Board jurisdiction). An issue is 

considered “actually litigated” when, as here, it was properly raised by the 

pleadings, submitted for determination, and determined. Id., ¶ 9. An appellant is 

considered to have been fully represented even when she represented herself. See 

Fisher v. Department of Defense, 64 M.S.P.R. 509, 515 (1994) (the party need not 

have been represented by an attorney; rather, the relevant question is whether her 

interests relevant to the issue being litigated were fully represented in the prior 

litigation). 

¶6 The issue of the Board’s jurisdiction here was raised and litigated in the 

2005 appeal, and the administrative judge’s determination on that issue was 

necessary to the resulting judgment. See Oppé I at 2-5. Both parties’ interests 

were fully represented. In the 2005 appeal, the appellant contended as she does 

now that she met the requirement of “current continuous service” and the 

definition of “employee” under 5 U.S.C. § 7511(a)(1). See Oppé I at 3-4. The 

administrative judge rejected her claims that she had satisfied the requirement by 

having served more than 1 year without a break in service in positions at the 
5

Veterans Administration and the Department of the Navy—jobs she had held 

consecutively between February 15, 1978, and September 28, 1979. Id. at 4-5. 

The administrative judge noted that the “current continuous service” requirement 

can only be satisfied by the completion of such a period of employment 

immediately preceding the adverse action in question. Id. at 4. The appellant’s 

period of service ended more than 24 years before her March 8, 2004 appointment 

with the agency. Id. The administrative judge dismissed the appeal for lack of 

Board jurisdiction. Id. at 5.

¶7 The administrative judge thus correctly found that the issue of the 

appellant’s probationary termination raised in this appeal was also raised before 

the Board in 2005 and barred by collateral estoppel. See ID at 5. To the extent 

that the appellant asserts that her discovery of the SF-52 justifies reconsideration, 

she is simply seeking another bite of the apple. When she was appointed, she was 

on notice that she was subject to a probationary period. See IAF, Tab 1, Encl. 3 

at N18. She could have reasonably asked why she was not reinstated pursuant 

to 5 C.F.R. § 315.401. In any event, the Board lacks jurisdiction over an 

agency’s decision not to reinstate an employee pursuant to 5 C.F.R. § 315.401. 

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 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,

moreover, 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 arguments are thus unavailing, and the administrative judge properly 

dismissed her appeal.
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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 

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 

information regarding pro bono representation for Merit Systems Protection 

Board appellants before the Federal Circuit. The Merit Systems Protection Board 
7

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