# Pedro Vazquez v. Department of the Air Force

> Merit Systems Protection Board · June 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10417518

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 26, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417518

## How later opinions describe it (automated extraction)

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

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

PEDRO VAZQUEZ, DOCKET NUMBER
Appellant, DC-315H-19-0466-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3

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
4

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

3
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).
4
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.
5

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
6

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.
5
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.
7

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
6
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.
8

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
9

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
10

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
following address:
11

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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417518. Public record. Not legal advice.