UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ANGELA M. OPPÉ

, Appellant,

v.
NATIONAL AERONAUTICS AND SPACE ADMIN INSTRATION , Agency. DOCKET NUMBER DC

- 315H

- 15

- 0136

- I

- 1

DATE: May 19, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Angela M. Opp é , New C astle, 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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

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 cl osed. 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 mod ified 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 Admini stration (NASA) as a Resources Analyst, GS

- 0501

- 12 , effective March 8, 2004 , subject to a 1

- year probationary period

. Opp é v. National Aeronautics & Space Administration , MSPB Docket No. DC

- 315H

- 05

- 0351

- I

- 1, Initial Decision at 2 (Apr. 28, 2005) (hereinaf ter Opp é 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 i d. at 1, 5

. S he 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 a re in accurate

. We have correct ed the initial decision here in that respect.
3 Th is appeal was filed more than 30 days after the appellant’s receipt of the decision terminating her employment. S ee 5 C.F.R. § 1201.22 (b)

. The administrative judge made no f inding s on the issue of timeliness . I nitial A ppeal F ile , Tab 10, Initial Decision (ID) at 1 n.1. B ecause the Board lacks jurisdiction over the appe al , he found it unnecessary to reach that issue. Id.3

submissions, t he administrative judge found that the appeal was barred by collateral estoppel and dismiss ed it

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

- 5. ¶3 On review, the a ppellant 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 terminat ed 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 Opp é v. Department of State , MSPB Docket No. DC

- 315H

- 15

- 0137

- I

- 1 , Final Order, ¶ 5 (Apr. 10, 2015) (hereinafter Opp é 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. Opp é II , ¶ 2. In her State Department appeal, s he contended that the September 28, 1979 SF

- 50 show s that she i s entitled to lifetime reinstatement rights and benefits pursuant to 5 C.F.R. § 315.401 (b) as a 10

- point preference

- eligible veteran who ha s already served a probationary period. 5 Opp é II , ¶ 5

. ¶4 The administrative judge, however, did not fail to consider the appellant’s assertion that she had complet ed a probationary period during a prior period of federal employment. Ex tensive documentation regarding that issue is in the

4 The appellant requested a hearing, but the adminis trative 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 P art 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). Th ere 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 c ollateral 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 , 10 0 M.S.P.R. 14 6 , ¶ 15 (20 0 5 ). 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 N oble v. U.S. Postal Service , 93 M.S.P.R. 693 , ¶¶ 10

- 11 (2003) (c ollateral 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. I d

. , ¶ 9

. An appellant is considered to have been fully represented even when she represent ed 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 i nterests 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 Opp é I at 2

- 5. B oth parties’ interests

were fully represented. In th e 2005 appeal, t he appellant contended as she d oes

now that she met the requirement of “current continuous service” and the definition of “employee” under 5 U.S.C. § 7511 (a)(1)

. See Opp é I at 3

- 4. Th e administrative judge reject ed her claims that she had satisfied the requirement by having served more than 1 year without a break in service in positions at the5

Veterans Administration and the Department of the Navy

— jobs she had held consecutively between February 15, 1978, and Septem ber 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 appell ant’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 iss ue 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 t he appellant asserts that he r discovery of the SF

- 52 justifies reconsideration , she is simply seeking another bite of the apple. When she was appointed, s he 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 pursuan t
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 previous ly was employed under career or career

- conditional appointment (or equivalent). ” 5 C.F.R. § 315.401 (a) (emphasis added). As a general m atter,
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.6

NOTICE TO THE APPELL ANT 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 decisi on. 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 afte r 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, secti on 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

. Addit ional inform ation 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 Board7
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