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Pervez v. Department of the Navy

October 25, 1999

NILOFER PERVEZ, PETITIONER,
V.
DEPARTMENT OF THE NAVY, RESPONDENT.



Before Newman, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.

The opinion of the court was delivered by: Friedman, Senior Circuit Judge.

Appealed from: Merit Systems Protection Board

This petition to review challenges the Merit Systems Protection Board ("Board")'s dismissal for want of jurisdiction of the petitioner Pervez's appeal from her removal by the Department of the Navy. The Board took that action because the removal was effected while Pervez was a probationary employee, a decision the Board had no jurisdiction to review. We affirm.

I.

The pertinent facts, as set forth in the Board's decision and in the record, are undisputed.

Pervez worked for 15 years as a pharmacist with the Department of the Army. Her employment there was terminated "to accept appointment in the Department of the Navy," effective March 29, 1997. She was given a career appointment in the same capacity with the Department of the Navy effective March 30, 1997. The Standard Form 50-B, which documented her appointment, stated that the "appointment is subject to completion of one year initial probationary period beginning 03-30-97" and that "you will be in tenure group 11 until you complete the one-year probationary period that began 03-30-97."

On February 27, 1998, within the one year probationary period, the Department of the Navy discharged her "for the offenses of (1) Misuse of Government Equipment; (2) Inattention to Duty; (3) Leaving Job and DON Premises, to Which Assigned During Regular Working Hours, Without Proper Authorization; and (4) Endangering the Safety of Patients."

Pervez appealed her discharge to the Board. Noting that "[p]robationary employees . . . have limited rights of appeal to the Board," the Board's administrative Judge directed Pervez "to file evidence and argument to prove that this action is within the Board's jurisdiction." Pervez replied that she had "legal status as a permanent employee with a total of 17 years, and 9 months continuous federal service," and that she was not "an employee serving a probationary period."

The Board dismissed the appeal for lack of jurisdiction. In her initial decision, which became final when the Board denied review, the administrative Judge ruled that the Navy had removed Pervez during her probationary period, and that the Board therefore did not have jurisdiction over her appeal.

II.

Under Office of Personnel Management (OPM) regulations, (a) The first year of service of an employee who is given a career or career-conditional appointment under this part is a probationary period when the employee: (1) Was appointed from a register . . . . 5 C.F.R. 315.801(a).

The regulations further provide that "Prior Federal civilian service . . . counts toward completion of probation when the prior service:

(1) Is in the same agency, e.g., Department of the Army . . . ." 5 C.F.R. 315.802(b).

The regulations do not define the term "same agency." In this case, however, we need not explore the parameters of that phrase, since we agree with the Board that Pervez's prior service in the Department of the Army was not "in the ...


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