Document #: 1132338 v 1

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LISA M. MENDEZ,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DC-315H-14-0914-I-1

DATE: January 29, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Joseph E. Benitez, Coral Gables, Florida, for the appellant.

Katherine Meng, and Melissa Anderson, Washington, D.C., 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 the 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 interpretation of statute or 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The appellant filed an appeal in which she alleged that she involuntarily 

resigned from her position with the agency’s Bureau of Alcohol, Tobacco, and 

Firearms during her probationary period. Initial Appeal File (IAF), Tab 2 at 9-10. 

She contended that the agency discriminated against her on the basis of her 

marital status. Id. at 2-5. Among numerous other claims, she also contended 

that the agency failed to explain to her the authority under which it hired her. Id.

at 22. She did not request a hearing. In addition to the usual acknowledgment 

order, the administrative judge issued a show cause order in which she set forth 

the elements and burdens of establishing Board jurisdiction over the appeal and 

ordered the appellant to file evidence and argument in that regard. IAF, Tabs 3-4. 

The appellant did not respond. 

¶3 The agency responded that it appointed the appellant, effective March 23, 

2014, to a temporary excepted-service appointment, not to exceed 3 years, 120 

days, the entirety of which was a probationary period for training and 

development purposes. IAF, Tab 7 at 6, 15-16. The agency further asserted that 

the appellant had no previous federal service and was not preference eligible. Id.

at 6, 17. Thus, the agency contended, the appellant was not an employee with 
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appeal rights pursuant to 5 U.S.C. § 7511(a)(1) at the time she resigned, and it 

moved to dismiss the appeal for lack of jurisdiction. Id. at 7-8, 13-14. 

¶4 In the initial decision, the administrative judge found that the appellant 

failed to meet her burden to make a nonfrivolous allegation of facts that, if 

proven, could establish her right to a hearing over the issue of Board jurisdiction 

over her appeal. IAF, Tab 8, Initial Decision (ID). Specifically, the 

administrative judge found that the appellant failed to establish that she was an 

“employee” with appeal rights under 5 U.S.C. § 7511(a)(1). ID. As noted above, 

she dismissed the appeal for lack of jurisdiction. ID. 

¶5 In her petition for review, the appellant contends, among other things, that 

the initial decision contained “erroneous findings of fact which were not in line 

with the testimony and evidence presented during the hearing.” Petition for 

Review (PFR) File, Tab 1 at 2. But, the record does not reflect that the 

administrative judge held a hearing. ID. The appellant also claims that she has 

material evidence that she was not allowed to submit before the record closed. 

PFR File, Tab 1 at 2. But, the record instead reflects that the appellant failed to 

reply to the administrative judge’s jurisdictional order and did not attempt to 

submit anything but her initial appeal before the record closed below. She 

reiterates the arguments she submitted in her appeal, including her allegation of 

marital status discrimination. Id. at 15, 29. The appellant also claims that the 

agency wrongfully denied documents and records to her, but she does not assert 

that she sought discovery under the Board’s regulations or that she sought to 

compel the production of those items pursuant to such a request. Id. at 16; see

IAF, Tab 3 at 3; see also 5 C.F.R. §§ 1201.71-1201.85. The agency responds in

opposition. PFR File, Tab 3. 

¶6 The Board’s jurisdiction is not plenary. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears the 

burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R. 

§ 1201.56(a)(2)(i). Although the appellant indicated in her initial appeal that she 
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served in the competitive service, IAF, Tab 2 at 9, the evidence instead indicates 

that she served in the excepted service, IAF, Tab 7 at 15-16. A probationary 

employee in the excepted service who has not completed her probationary period 

has no statutory right of appeal to the Board. E.g., Ramirez-Evans v. Department 

of Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010). 

¶7 Moreover, excepted service employees lack the regulatory grounds for 

appeal of probationary terminations, such as discrimination on the basis of 

partisan political reasons or marital status, that are available to competitive 

service employees under 5 C.F.R. § 315.806. Barrand v. Department of Veterans 

Affairs, 112 M.S.P.R. 210, ¶ 13 (2009) (holding that 5 C.F.R. § 315.806 applies 

only to individuals in the competitive service). Thus, the appellant’s unsupported 

allegations of marital status discrimination are not relevant. Furthermore, the 

appellant’s arguments regarding the merits of her involuntary resignation claim 

are irrelevant to the issue of the Board’s jurisdiction over her appeal and, thus, 

they fail to show that the administrative judge committed an error of law in 

dismissing this appeal for lack of jurisdiction. See Rivera v. Department of 

Homeland Security, 116 M.S.P.R. 429, ¶ 13 (2011) (finding the appellant’s merits 

arguments to be immaterial to the jurisdictional issue). Lastly, we note that, prior 

to her appointment, the appellant signed a document which explicitly set forth the 

term-limited nature of her excepted service appointment, IAF, Tab 7 at 21, and 

she provides no authority to indicate that her unsupported allegation that the 

agency failed to explain the hiring authority it used in appointing her is somehow 

appealable to the Board. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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

the court at the following address:
5

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 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
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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