Filed: Jul. 14, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARIELA SALAZAR, DOCKET NUMBER Appellant, DA-0752-14-0496-I-1 v. DEPARTMENT OF HOMELAND DATE: July 14, 2015 SECURITY, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Javier Pena, Esquire, Edinburg, Texas, for the appellant. Lisa M. Ezra, Esquire, and Jennifer Petelle, Esquire, Laredo, Texas, 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
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARIELA SALAZAR, DOCKET NUMBER Appellant, DA-0752-14-0496-I-1 v. DEPARTMENT OF HOMELAND DATE: July 14, 2015 SECURITY, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Javier Pena, Esquire, Edinburg, Texas, for the appellant. Lisa M. Ezra, Esquire, and Jennifer Petelle, Esquire, Laredo, Texas, 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 ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIELA SALAZAR, DOCKET NUMBER
Appellant, DA-0752-14-0496-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 14, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Javier Pena, Esquire, Edinburg, Texas, for the appellant.
Lisa M. Ezra, Esquire, and Jennifer Petelle, Esquire, Laredo, Texas, 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
affirmed her removal from service. 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 regulation or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 held an Agriculture Specialist position for the agency’s
Bureau of Customs and Border Protection (CBP) in Laredo, Texas. Initial Appeal
File (IAF), Tab 1 at 2, Tab 9 at 92. In June 2013, she was randomly selected for a
drug test. See IAF, Tab 12 at 35. The results revealed the presence of cocaine.
Id. at 44, 139.
¶3 In August 2013, the agency charged the appellant with testing positive for a
controlled substance in a random drug test and proposed her removal. Id.
at 35-37. She responded in May 2014, after the agency granted numerous
requests for extensions. IAF, Tab 9 at 99-162; see IAF, Tab 11 at 34-35.
Subsequently, the agency issued its decision, removing the appellant from
service. IAF, Tab 9 at 94-97.
¶4 The appellant filed the instant appeal. IAF, Tab 1. After holding the
requested hearing, the administrative judge affirmed the agency’s action. IAF,
3
Tab 25, Initial Decision. The appellant has filed a petition for review. 2 Petition
for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶5 In her petition, the appellant argues that the administrative judge erred by
refusing to allow a representative to participate on the first day of the hearing,
which resulted in one agency witness having to testify later by telephone, rather
than by videoconference. 3 PFR File, Tab 1 at 6. We disagree.
¶6 The appellant’s appeal was scheduled for 2 days of hearing, rather than
1 day, to accommodate the deciding official’s scheduling conflict. See IAF,
Tab 8 at 1, Tab 16 at 4-5, Tab 18 at 2. However, neither the appellant nor her
designated representative appeared on the first hearing date, September 30, 2014,
when the deciding official was scheduled to testify via videoconference. IAF,
Tab 23 at 1. Instead, Chad Fulda of Heller and Fulda appeared, claiming to
represent the appellant. Compare IAF, Tab 1 at 6, with IAF, Tab 23 at 1.
Because Mr. Fulda was not the appellant’s designated representative, the
administrative judge rescheduled the deciding official’s testimony for October 7,
2014, to be taken telephonically. IAF, Tab 23 at 1.
¶7 We first find no error in the administrative judge’s decision to reschedule
the September 30, 2014 video hearing, rather than move forward on that day with
Mr. Fulda as the appellant’s representative. The Board’s regulations provide that
parties must designate their representatives in writing. 5 C.F.R. § 1201.31(a).
Here, the record contained no designation from the appellant, written or
2
The appellant’s petition presents no substantive challenge to the administrative
judge’s findings regarding the charge, nexus, or penalty, and we discern no basis for
disturbing the administrative judge’s well-reasoned findings as to the same. See
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987)
(finding no reason to disturb the administrative judge’s findings when she considered
the evidence as a whole, drew appropriate inferences, and made reasoned conclusions).
3
The appellant’s petition mistakenly cited the first day of hearing as September 15,
2014. PFR File, Tab 1 at 6. However, the hearing at issue was scheduled for and
attempted on September 30, 2014. IAF, Tab 23. September 15, 2014, was the date of a
prehearing conference, at which the appellant’s representative failed to appear. IAF,
Tab 18.
4
otherwise, that Mr. Fulda was her representative. See IAF, Tab 1 at 6, Tab 20
at 5, Tab 23 at 1.
¶8 We next find no basis to disturb the administrative judge’s decision to move
forward with the deciding official’s testimony on October 7, 2014, via telephone.
In some cases, the Board has found that it may be reversible error to allow
telephonic testimony regarding disputed factual matters because of the obvious
impediment to the ability to observe the demeanor of witnesses. Compare
Robertson v. Department of Transportation, 113 M.S.P.R. 16, ¶¶ 10, 13-15 (2009)
(finding that the administrative judge erred in taking testimony via telephone over
the appellant’s objection and that remand was necessary because the error had a
potential adverse effect on her substantive rights), with Lowe v. Department of
Defense, 67 M.S.P.R. 97, 99-101 (1995) (finding that the administrative judge
erred by holding the hearing via telephone over the appellant’s objections, but
finding remand unnecessary because there was no basis to find that the error had
a potential adverse effect on her substantive rights). However, an administrative
judge has wide discretion to control hearing proceedings. Parker v. Department
of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). An appellant’s failure to
timely object to an administrative judge’s rulings precludes her from doing so on
review. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
¶9 As detailed above, the administrative judge cancelled the video testimony of
the deciding official because neither the appellant nor her designated
representative appeared for it. IAF, Tab 23 at 1. When the administrative judge
rescheduled the testimony to be taken via telephone, she invited either party to
file a written objection prior to the hearing. Id. at 1-2. However, the appellant
failed to do so. Instead, she orally objected at the start of the hearing, requesting
a continuance. IAF, Tab 24, Hearing Compact Disc. Because that objection was
untimely, we need not address it further on review. See Wagner v. Environmental
Protection Agency, 54 M.S.P.R. 447, 453 (1992) (finding that because the
appellant did not object to the hearing schedule change prior to the hearing, he
5
failed to preserve the alleged error for the Board’s review), aff’d, 996 F.2d 1236
(Fed. Cir. 1993).
¶10 Similarly, we need not address the appellant’s remaining arguments. In her
petition for review, the appellant alleges that the agency used an outdated
Drug-Free Workplace plan when it effectuated her removal, failed to notify her of
the updated plan, and failed to comply with that updated plan. 4 PFR File, Tab 1
at 6. The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant failed to
present the aforementioned allegations pertaining to the appropriate Drug-Free
Workplace plan below. See IAF, Tab 18 at 1-3, Tab 21 at 4-6. Because the
appellant has not explained her failure to raise the arguments before the
administrative judge, we do not address them for the first time on review.
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:
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
4
Although the appellant’s petition cited 2002 and 2013 as the dates of the respective
Drug-Free Workplace policies, PFR File, Tab 1 at 6, it appears that she intended to
refer to 2002 and 2012 policies, both of which were included in the agency’s file below,
see IAF, Tab 12 at 165-97 (2012 Drug-Free Workplace Plan), 222-76 (2002 Drug-Free
Workplace Plan).
6
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 an appeal to the
United States 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 Merit Systems 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
