Opinion

Pedro Vazquez v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Jun 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 29.3%

holding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

How later courts described this case

holding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEDRO VAZQUEZ, DOCKET NUMBER

Appellant, DC-315H-19-0466-I-1

DEPARTMENT OF THE AIR FORCE, DATE: June 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Captain James J. Woodruff, II , Esquire, Joint Base Andrews, Maryland, for

the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as

expressly MODIFIED to address the appellant’s argument that he was not

required to serve a probationary period under his appointment to the agency

because he already completed one during his prior service with the Department of

the Navy (Navy), we AFFIRM the initial decision.

As properly set forth in the initial decision, the Board’s jurisdiction is

limited to those matters over which it has been given jurisdiction by law, rule, or

regulation. Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 2; Maddox v.

Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant

bears the burden of proving the Board’s jurisdiction by preponderant evidence.

ID at 2-3; 5 C.F.R. § 1201.56(b)(2)(i)(A). Generally, if an appellant makes a

nonfrivolous allegation 2 that the Board has jurisdiction over his appeal, he is

entitled to a hearing on the jurisdictional question. ID at 3; Hurston v.

Department of the Army, 113 M.S.P.R. 34, ¶ 5 (2010).

The appellant has failed to make a nonfrivolous allegation that he completed

1 year of current continuous service at the time of his termination.

To establish Board jurisdiction under 5 U.S.C. chapter 75 over an adverse

action, an individual must, among other things, show that he satisfies one of the

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Walker

v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). Under 5 U.S.C.

§ 7511(a)(1)(A), an “employee” means “an individual in the competitive service

—(i) who is not serving a probationary or trial period under an initial

appointment; or (ii) except as provided in section 1599e of title 10, who has

completed 1 year of current continuous service under other than a temporary

appointment limited to 1 year or less.”

Section 1105 of the National Defense Authorization Act for Fiscal

Year 2016, Pub. L. No. 114-92 (enacted on November 25, 2015), amended the

definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)(ii) by adding an

exception codified at 10 U.S.C. § 1599e. Bryant v. Department of the Army,

2022 MSPB 1, ¶ 8. Section 1599e provides, among other things, that individuals

appointed to a permanent, competitive-service position at the Department of

Defense (DOD) are subject to a 2-year probationary period and only qualify as an

“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if they have completed 2 years of

current continuous service. Bryant, 2022 MSPB 1, ¶ 8.

Here, although the administrative judge did not address the effect of

10 U.S.C. § 1599e in the initial decision, we discern no harm to the appellant’s

substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision). The

Standard Form (SF) 50 documenting the appellant’s appointment to the agency

reflects that his appointment was temporary because it was not to exceed 1 year.

IAF, Tab 6 at 10; see 5 C.F.R. § 316.401(c)(1) (providing that an agency may

make a temporary appointment for a specified period not to exceed 1 year). Thus,

we find that the 2-year probationary period and amendment provided by

10 U.S.C. § 1599e do not apply to his agency appointment.

For the reasons discussed in the initial decision, we agree with the

administrative judge’s finding that, regardless of the temporary nature of the

appellant’s appointment, he failed to make a nonfrivolous allegation that he

completed 1 year of current continuous service at the time of his termination by

the agency. ID at 3-5; see Ellefson v. Department of the Army, 98 M.S.P.R. 191,

¶ 14 (2005); 5 C.F.R. § 752.402 (defining “current continuous employment”).

Thus, he cannot meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)

(A)(ii). We further agree with the administrative judge’s alternative finding that,

even if the appellant was an individual in the excepted service (subject to the

definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)), 3 the outcome would

not change because he still would have to establish that he completed 1 year of

current continuous service. 4 ID at 5 n.3; see Winns v. U.S. Postal Service,

124 M.S.P.R. 113, ¶¶ 10, 13, 16 (2017) (deferring to the definition of “current

continuous employment” set forth at 5 C.F.R. § 752.402, as a reasonable

It is unclear based on the record whether the appellant was an individual in the

competitive or excepted service. For example, the SF-50 documenting his appointment

reflects that the agency used the Schedule A hiring authority set forth at 5 C.F.R.

§ 213.3102(u), which suggests he was in the excepted service. IAF, Tab 6 at 10; see

Van Wersch v. Department of Health & Human Services , 72 M.S.P.R. 662, 665-66

(1996) (explaining that excepted-service appointments under 5 C.F.R. § 213.3102(u) are

made to a particular class of individuals). However, the agency’s SF-50s documenting

his appointment and termination reflect that his position was in the competitive service.

IAF, Tab 6 at 10-11. Further, the agency’s termination memorandum stated that he was

reinstated to a career-conditional appointment and it provided him with appeal rights on

the bases set forth at 5 C.F.R. § 315.806, which only applies to individuals in the

competitive service. IAF, Tab 1 at 8-9; Barrand v. Department of Veterans Affairs,

112 M.S.P.R. 210, ¶ 13 (2009).

The administrative judge’s Acknowledgment Order only informed the appellant of the

definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A), which applies to

individuals in the competitive service. IAF, Tab 2 at 4 n.5; see Burgess v. Merit

Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (holding that an

appellant must receive explicit information on what is required to establish an

appealable jurisdictional issue). However, the agency’s jurisdictional response placed

the appellant on notice regarding the definition of “employee” set forth at 5 U.S.C.

§ 7511(a)(1)(B), which applies to preference eligibles in the excepted service. IAF, Tab

6 at 5; see Nichols v. Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996)

(finding that the agency’s pleading provided the appellant with adequate jurisdictional

notice). It is undisputed that the appellant is a preference eligible. IAF, Tab 3 at 10-16.

interpretation of 5 U.S.C. § 7511(a)(1)(B)), aff’d sub nom. Williams v. Merit

Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018).

The appellant has failed to make a nonfrivolous allegation that he was not serving

a probationary period under his appointment to the agency.

For the reasons provided in the initial decision, we agree with the

administrative judge’s finding that the appellant failed to make a nonfrivolous

allegation that he completed a 1-year probationary period under his appointment

to the agency. ID at 2-5; see Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R.

§ 315.802(b). Thus, he cannot meet the definition of “employee” under 5 U.S.C.

§ 7511(a)(1)(A)(i).

On petition for review, the appellant argues that the administrative judge

failed to consider his argument that he was not required to serve a probationary

period under his appointment to the agency because he already completed one

during his prior Navy service. Petition for Review (PFR) File, Tab 1 at 4-6; ID

at 5. We modify the initial decision to address his argument, as follows.

Pursuant to 5 U.S.C. § 3321(a), an individual generally is required to

complete a probationary period upon initial appointment to a competitive service

position and upon initial appointment to a supervisory or managerial position.

See 5 C.F.R. §§ 315.801, 315.901, 315.904(a). Under certain circumstances, an

individual who has completed these types of probationary periods may not be

required to serve another one in a new appointment. See 5 C.F.R. §§ 315.801(a)

(2), 315.904(b). However, the probationary periods contemplated by 5 U.S.C.

§ 3321(a), do not apply to individuals covered by 10 U.S.C. § 1599e. 5 U.S.C.

§ 3321(c). As discussed above, under 10 U.S.C. § 1599e, individuals appointed

to a permanent position within the competitive service at the DOD are required to

serve a 2-year probationary period.

Here, the SF-50s documenting the appellant’s initial appointment and

subsequent reinstatement to the Navy reflect that he held competitive-service

positions that were not time-limited. 5 IAF, Tab 5 at 6, Tab 6 at 8. Accordingly,

we find that his Navy appointments were subject to the completion of a 2-year

probationary period under 10 U.S.C. § 1599e. Even considering the appellant’s

total length of Navy service, he did not complete 2 years of service with the Navy

that could satisfy the requisite 2-year probationary period. IAF, Tab 5 at 6-7,

Tab 6 at 7-9. Although the SF-50s documenting his Navy appointments do not

reflect that he was subject to a 2-year probationary period, IAF, Tab 5 at 6, Tab 6

at 8, an SF-50 is not a legally operative document controlling on its face an

employee’s status and rights, Scott v. Department of the Air Force, 113 M.S.P.R.

434, ¶ 8 (2010). For example, in Bryant, 2022 MSPB 1, ¶¶ 9-10, the Board found

that 10 U.S.C. § 1599e and the aforementioned amendment to 5 U.S.C. § 7511(a)

(1)(A)(ii), controlled the Board’s jurisdiction in the termination appeal—not the

agency’s misstatements in the vacancy announcement and SF-50 reflecting that

the appellant’s position required only a 1-year probationary period. Therefore,

we find that the appellant’s argument that he was not required to serve a

probationary period under his appointment to the agency because he already

completed one during his prior Navy service is unavailing.

The appellant has failed to make a nonfrivolous allegation that the Board has

jurisdiction under 5 C.F.R. § 315.806.

The appellant does not dispute, and we discern no reason to disturb, the

administrative judge’s finding that he has not alleged that he was terminated for

pre-appointment reasons or based on partisan political reasons or marital status.

PFR File, Tab 1; ID at 6. Thus, the appellant has failed to make a nonfrivolous

allegation that the Board has jurisdiction under 5 C.F.R. § 315.806. ID at 6.

Contrary to the appellant’s assertion on review that he initially was hired under

“Veterans Readjustment Appointment” authority, PFR File, Tab 1 at 4, the SF-50

indicates that he was appointed pursuant to the Veterans Employment Opportunities Act

of 1998, as amended by section 511 of the Veterans Millennium Health Care and

Benefits Act, Pub. L. No. 106-117, 113 Stat. 1545 (1999), IAF, Tab 5 at 6; see

LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 2 n.1 (2016).

Appointees under this authority receive career or career-conditional appointments in the

competitive service. 5 U.S.C. § 3304(f)(2); see LeMaster, 123 M.S.P.R. 453, ¶ 2 n.1.

The appellant’s new argument on review provides no reason to disturb the initial

decision.

For the first time on review, the appellant argues that this appeal could be

affected by a pending complaint that he filed with the Office of Special Counsel

(OSC) regarding his prior termination by the Navy. PFR File, Tab 1 at 5 & n.1,

6. He speculates that, if his OSC complaint is successful, it could result in him

having current continuous service from April 17, 2017, to March 29, 2019. Id.

at 6. The appellant has failed to explain why he was unable to raise this argument

before the administrative judge. See Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (holding that 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). Nevertheless, we discern no reason to disturb the initial decision

based on the appellant’s speculation on the potential impact of his pending OSC

complaint.

Accordingly, we affirm the dismissal of this termination appeal for lack of

jurisdiction.

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

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

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. 420 (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,

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. The court of appeals must receive your petition for

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