Parker-Stuckey v. Department of the Treasury

46 F. App'x 625
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 9, 2002
DocketNo. 02-3189
StatusPublished

This text of 46 F. App'x 625 (Parker-Stuckey v. Department of the Treasury) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker-Stuckey v. Department of the Treasury, 46 F. App'x 625 (Fed. Cir. 2002).

Opinion

PER CURIAM.

DECISION

Elizabeth M. Parker-Stuckey appeals from the decision of the Merit Systems Protection Board dismissing her appeal for lack of jurisdiction. Parker-Stuckey v. Dep’t of Treasury, 91 M.S.P.R. 131 (M.S.P.B.2002) (“Parker-Stuckey II”). Because the Board did not err in dismissing the appeal, we affirm.

DISCUSSION

Ms. Parker-Stuckey was an employee of the Internal Revenue Service from February 1985 until her resignation in July 2000. On January 8, 2001, she was rehired as a Data Transcriber, a career-conditional appointment subject to a one-year probationary period. While seeking that appointment, Parker-Stuckey completed Form 306, which she signed as “applicant” on two dates prior to her appointment and as “appointee” on January 8, 2001, the effective date of- her appointment. On the form, she answered “yes” to the question whether she had been convicted of any crime within the previous ten years and, listed a 1992 arrest for issuing a bad check. However, she did not disclose her 1996 convictions for possession of marijuana and willfully giving a false name to police. The Department of the Treasury (the “agency”) terminated Parker-Stuckey on June 21, 2001, effective July 13, 2001, for providing misleading information on the Form 306.

Parker-Stuckey challenged her removal by filing a timely appeal to the Merit Systems Protection Board. In an order dated August 31, 2001, an administrative judge (“AJ”) advised Parker-Stuckey that she could meet her jurisdictional burden as a probationary employee terminated for pre-appointment reasons by showing that the agency’s failure to follow the procedural requirements of 5 C.F.R. § 315.805 constituted harmful error. Parker-Stuckey v. Dep’t of Treasury, 91 M.S.P.R. 131 (M.S.P.B.2001) (“Parker-Stuckey I”). After determining that Parker-Stuckey’s termination was based on both pre-appointment and post-appointment grounds because she had signed the Form 306 both before and after her appointment became [627]*627effective, the AJ issued a second jurisdictional order dated October 3, 2001. Id. That order advised Parker-Stuckey that, as a probationary employee terminated for post-appointment reasons, she could also meet her jurisdictional burden by making a nonfrivolous allegation that her termination was due to discrimination based on marital status or partisan political reasons. Id. After the parties responded to both orders, the AJ found that Parker-Stuckey had failed to provide facts that would establish harmful error and that she had failed to raise claims of discrimination based on marital status or partisan politics. Id. The AJ thus issued an Initial Decision dismissing the appeal for lack of jurisdiction. Id. The full Board denied Parker-Stuckey’s petition for review and made the decision of the AJ final. Parker-Stuckey II. Parker-Stuckey timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Jennings v. MSPB, 59 F.3d 159, 160 (Fed.Cir.1995). The Board’s jurisdiction is limited to those actions specifically enumerated by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); 5 C.F.R. § 1201.8(a) (2001). The scope of the Board’s jurisdiction is a question of law that we review de novo. Bolton v. MSPB, 154 F.3d 1313, 1316 (Fed.Cir.1998). Parker-Stuckey has the burden of proving by preponderant evidence that the Board has jurisdiction over her appeal. See 5 C.F.R. § 1201.56(a)(2) (2001).

On appeal, Parker-Stuckey apparently argues that the procedural guidelines governing her termination were not applied properly, claiming that she did not receive “any type of warning of what was happening.” She also makes a general allegation of discrimination, but the basis of that claim is unclear. The government responds that the Board properly concluded that there was no merit to Parker-Stuckey’s pre-appointment claim because she did not allege any facts to show that she would not have been terminated had she received the procedural protections of 5 C.F.R. § 315.805.

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Daniel B. Pierce v. Government Printing Office
70 F.3d 106 (Federal Circuit, 1995)
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193 F.3d 1371 (Federal Circuit, 1999)
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Bluebook (online)
46 F. App'x 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-stuckey-v-department-of-the-treasury-cafc-2002.