UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BIANCA C. WITTENBERG,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

SF-315H-17-0196-I-1

DATE: July 21, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bianca C. Wittenberg, El Dorado Hills, California, pro se.

Jared Hatch, Los Angeles, California, for the agency.

Maria Surdokas, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed her termination appeal for lack of jurisdiction. Generally, we grant 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

petitions such as this one 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 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 petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review. However,

we VACATE the initial decision and DISMISS the appeal for lack of jurisdiction

for the reasons set forth in this Final Order.

BACKGROUND

¶2 Effective April 22, 2016, the agency appointed the appellant to a term 

appointment in the excepted service as an Air Traffic Control Specialist with the 

Federal Aviation Administration (FAA) to attend FAA Academy training. Initial 

Appeal File (IAF), Tab 8 at 11. The agency converted the appellant to a 

conditional appointment in the excepted service on July 21, 2016. Id. at 8-9. The 

Standard Form 50 (SF-50) effecting the appointment stated that the appellant held 

a drug and alcohol “testing designated position” and that the appointment was 

“subject to completion of [a] one year trial period beginning 04-22-16.” Id. On

December 28, 2016, the agency terminated the appellant for failing a random drug 

test, performed in accordance with Department of Transportation policy and the 

terms of the appellant’s position. IAF, Tab 7 at 28-29. 

¶3 The appellant filed an appeal of her termination with the Board and 

requested a hearing. IAF, Tab 1. She claimed that the agency committed harmful 
3

procedural error and demonstrated a “lack of a reasonable standard of care” due 

to irregularities in the drug testing procedures. Id. at 5. She attached a copy of 

the agency’s “Termination during Probation” memorandum, which referenced a 

1-year probationary period and informed her that she could appeal her termination 

to the Board if she believed that it was based on discrimination bec ause of marital 

status or partisan political reasons. Id. at 7-8.

¶4 In an acknowledgment order, the administrative judge informed the 

appellant that the Board may not have jurisdiction over her appeal and apprised 

her of the regulatory right to appeal for probationers in the competitive service 

and the requirements for meeting the definition of an “employee” for purposes of 

5 U.S.C. chapter 75 appeal rights. IAF, Tab 2 at 2-4. In response, the appellant 

claimed that the agency had terminated her due to a preexisting condition 

constituting a preappointment reason, discriminated against her based on marital 

status and other bases, and violated her due process rights. IAF, Tab 4 at 10 -13. 

The agency filed a response, arguing that the appeal should be dismiss ed due to 

lack of jurisdiction. IAF, Tab 9.

¶5 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial 

Decision (ID) at 1, 7. She found that the appellant did not meet the statutory 

definition of an “employee” under 5 U.S.C. § 7511(a)(1)(A), having been 

terminated during a 1-year probationary period under a competitive-service 

appointment. ID at 2, 5. She also found that the appellant failed to make a 

nonfrivolous allegation that she had a regulatory right to appeal under 5 C.F.R. 

§§ 315.805-.806. ID at 5-6. Finally, the administrative judge stated that the 

Board could not address the appellant’s due process and harmful procedural error

claims because she had not established jurisdiction over her appeal. ID at 6-7.

¶6 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response opposing the petition. PFR File, 

Tab 4.
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 Although the administrative judge correctly determined that the appeal is 

not within the Board’s jurisdiction, she based her decision on the belief that the 

appellant was appointed to the competitive service. ID at 2. The documentary 

evidence demonstrates that the agency appointed the appellant to the excepted 

service, in which case neither 5 U.S.C. § 7511(a)(1)(A) nor 5 C.F.R. part 315, 

subpart H, applies to the appellant. See Ramirez-Evans v. Department of 

Veterans Affairs, 113 M.S.P.R. 297, ¶ 8 (2010). Thus, we vacate the initial 

decision and dismiss the appeal for the reasons set forth below.

¶8 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The 1996 Department of 

Transportation and Related Agency Appropriations Act (DOT Act) established 

the FAA Personnel Management System, which moved FAA employees from the 

competitive service to the excepted service and exempted the FAA from most 

provisions of title 5 of the U.S. Code. De Santis v. Merit Systems Protection 

Board, 826 F.3d 1369, 1371 (Fed. Cir. 2016). The U.S. Court of Appeals for the 

Federal Circuit subsequently held that FAA employees could no longer file 

appeals with the Board because 5 U.S.C. § 7701(a), the basic Board jurisdictional 

provision, was not one of the enumerated exceptions to the title 5 exemption. Id. 

Congress restored certain Board appeal rights in 2000 through the Wendell H. 

Ford Aviation Investment and Reform Act for the 21st Century (Ford Act), which 

granted FAA employees the right to appeal any action that was appealable to the 

Board under any law, rule, or regulation as of March 31, 1996. 49 U.S.C. 

§ 40122(g)(2)-(3); De Santis, 826 F.3d at 1371. Although not addressed directly 

in the DOT Act or the Ford Act, the applicable definition of “employee” for 

purposes of determining Board jurisdiction is 5 U.S.C. § 7511, not the FAA 

Personnel Management System. Roche v. Merit Systems Protection Board, 

596 F.3d 1375, 1379, 1383 (Fed. Cir. 2010).
5

¶9 For a nonpreference-eligible individual in the excepted service, this means 

that she either must not be serving a probationary or trial period under an initial 

appointment pending conversion to the competitive service or have completed 

2 years of current continuous service in the same or similar positions in an 

Executive agency under other than a temporary appointment limited to 2 years or 

less. 5 U.S.C. § 7511(a)(1)(C); Barrand v. Department of Veterans Affairs, 

112 M.S.P.R. 210, ¶ 10 (2009). As set forth in the initial decision, probationers 

in the competitive service have limited regulatory appeal rights when terminated 

under the provisions set forth in 5 C.F.R part 315, subpart H. ID at 4. However, 

5 C.F.R. § 315.806(b)-(c), which provides certain appeal rights concerning 

terminations for preappointment reasons, and terminations based on marital status 

or partisan political reasons, do not apply to individuals in the excepted service,

including FAA employees. De Santis, 826 F.3d at 1376; Barrand, 112 M.S.P.R. 

210, ¶ 13.

¶10 In her initial appeal, the appellant did not identify the nature of her 

appointment, which was “unknown” to her, and she instead checked the box 

marked “other.” IAF, Tab 1 at 1. She stated that she was not entitled to veterans’

preference. Id. The agency’s response to the acknowledgment order included the 

SF-50s effecting the appellant’s initial term appointment, conversion 

appointment, and termination, all identifying the type of appointment as excepted 

service. IAF, Tab 8 at 9, 11, Tab 7 at 26. The agency’s narrative response 

asserted that, at the time of her termination, the appellant was serving in a 

“new-hire probationary period” of an excepted-service appointment. IAF, Tab 7 

at 8. On review, the appellant does not dispute that she was in a probationary or 

trial period at the time of termination, and she refers to her “probationary status.” 

PFR File, Tab 1 at 4. Therefore, although the administrative judge found that the 

appellant’s appointment was in the competitive service, due, in part, to the 

erroneous notice of appeal rights in the termination notice, IAF, Tab 1 at 7-8, the 

record is clear that she was in the excepted service. 
6

¶11 Although the administrative judge did not provide the appellant explicit 

jurisdictional notice regarding 5 U.S.C. § 7511(a)(1)(C), we may rule on the 

jurisdictional issue without prejudicing her substantive rights because the record 

on the dispositive facts is fully developed and plainly shows that the Board is 

without jurisdiction over this appeal. See Ramirez-Evans, 113 M.S.P.R. 297, ¶ 9. 

It is undisputed that the appellant had no prior Federal service and had served in 

her position less than 1 year at the time of her termination. The appellant and 

agency agree that the appellant was subject to a 1-year probationary or trial

period, and the record contains no indication that she held an initial appointment 

pending conversion to the competitive service. Thus, the appellant does not meet 

the definition of “employee” under 5 U.S.C. § 7511(a)(1)(C),

2

and the Board 

lacks jurisdiction over her termination appeal. See Roche, 596 F.3d at 1383. The 

appellant repeats on review her cursory statements that she was terminated due to 

“age, sex, and marital status” discrimination. PFR File, Tab 1 at 3. However, 

5 C.F.R. § 315.806 does not apply to her as an individual in the excepted service, 

De Santis, 826 F.3d at 1376, and the Board lacks jurisdiction over her 

discrimination claims absent an otherwise appealable action, 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). 

The agency’s incorrect notice of appeal rights cannot expand the Board’s 

jurisdiction. Barrand, 112 M.S.P.R. 210, ¶ 13. Therefore, although the 

administrative judge erroneously found that the appellant held a 

competitive-service appointment, at most, the administrative judge made a 

nonprejudicial error that had no effect on the appellant’s substantive rights or the 

outcome of this appeal. See Ramirez-Evans, 113 M.S.P.R. 297, ¶ 8.

 

2 Despite the agency’s assertion in its response to the appellant’s petition for review

that the FAA Personnel Management System governs whether the appellant is an 

“employee” for purposes of determining jurisdiction, PFR File, Tab 4 at 7, the 

applicable definition of “employee” is found at 5 U.S.C. § 7511, see Roche, 596 F.3d 

at 1379.
7

¶12 On review, the appellant asserts that the actions of the medical review 

officer involved in the drug testing constituted a “prohibited personnel action of 

discrimination,” and, for the first time on review, she cites generally 5 U.S.C. 

§ 1221 regarding individual right of action appeals. PFR File, Tab 1 at 3-4. She 

made no allegation in her initial appeal or responses to the acknowledgment order 

that she engaged in any whistleblower activity and makes no such allegation on 

review. Id.; IAF, Tabs 1, 4-6. She has not shown that this argument is based on 

new and material evidence not previously available despite her due diligence. 

See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R 

§ 1201.115. In any event, absent an otherwise appealable action, her vague 

assertion of a prohibited personnel practice based on “discrimination” does not 

provide an independent basis for finding Board jurisdiction. See Wren, 

2 M.S.P.R. at 2. The appellant has not raised any facts that would trigger Board 

review of this matter as a potential individual right of action appeal. Thus, the 

Board has no jurisdiction to consider the merits of the appellant’s termination

appeal, including her claims that the agency used flawed testing procedures and 

violated her due process rights. 

¶13 Accordingly, we dismiss the appeal for lack of jurisdiction for the reasons

set forth in this Final Order, which is now the Board’s final decision in this 

matter. 5 C.F.R. § 1201.113. 

NOTICE OF APPEAL RIGHTS3

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 

 

3

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.
8

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: 

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 
9

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. ____ , 137 S. Ct. 1975 (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 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, 
10

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

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.4The court of appeals must receive your petition for 

 

4

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. 
11

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. 

 

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

132 Stat. 1510. 
12

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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board