Opinion

Randy A Bohon v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RANDY A. BOHON, DOCKET NUMBER

Appellant, DC-0752-19-0354-I-1

UNITED STATES POSTAL SERVICE, DATE: July 2, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Randy A. Bohon , Apollo Beach, Florida, pro se.

Roderick D. Eves , Esquire, St. Louis, Missouri, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

The appellant is a preference eligible veteran whom the agency appointed

to the excepted service position of V-01 Real Estate Specialist, effective April 28,

2018. Initial Appeal File (IAF), Tab 1 at 2, Tab 4 at 64. The appointment was

subject to a 1-year probationary period. IAF, Tab 4 at 64. The agency terminated

the appellant’s employment effective February 16, 2019. Id. at 66-72.

The appellant filed a Board appeal, challenging the merits of the

termination and arguing that the agency violated his due process rights. IAF,

Tab 1 at 4, 11-13, 16-17. The appellant asserted that he had already completed

1 year of service when the agency terminated him because he had formed an

employment contract with the agency on February 6, 2018. Id. at 14-15, 18. He

also argued that his termination was based on partisan political reasons. IAF,

Tab 10 at 6. The agency moved to dismiss the appeal for lack of jurisdiction.

IAF, Tab 4 at 10-12.

After the close of the record, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial

Decision (ID). Although the administrative judge had not issued a jurisdictional

order in this appeal, he determined that the agency’s motion to dismiss was

sufficient to apprise the appellant of his burden and the issues involved. 2 ID

at 3 n.1. The administrative judge found that the appellant was not an

“employee” with chapter 75 appeal rights, and that the regulatory right of appeal

under 5 C.F.R. § 315.806(b), for competitive service employees terminated for

partisan political reasons, was not available to him. 3 ID at 4-5.

The appellant has filed a petition for review, challenging the administrative

judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1.

The agency has filed a response. PFR File, Tab 3.

ANALYSIS

To establish the Board’s jurisdiction over a removal action, a Postal

Service employee must show that: (1) he was a preference eligible, a

management or supervisory employee, or an employee engaged in personnel work

in other than a purely nonconfidential clerical capacity; and (2) he completed

1 year of current, continuous service in the same or a similar position. 5 U.S.C.

§ 7511(a)(1)(B); 39 U.S.C. § 1005(a); see Reedy v. U.S. Postal Service,

84 M.S.P.R. 453, ¶ 5 (1999); Johnson v. U.S. Postal Service, 66 M.S.P.R. 620,

626 (1995). It is undisputed that the appellant is a preference eligible. Therefore,

the issue is whether he had 1 year of current continuous service at the time of his

termination.

On petition for review, the appellant argues that, under contract law, an

employment contract existed between him and the agency beginning February 5,

We agree with the administrative judge that the agency’s motion to dismiss put the

appellant on notice of what he must do to establish jurisdiction. IAF, Tab 4 at 8-12.

We also find that the initial decision itself set forth the correct jurisdictional standard,

thus enabling the appellant to meet his jurisdictional burden on review. See Easterling

v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).

This finding was correct, and the appellant does not challenge it on review. See

Herbert v. U.S. Postal Service, 86 M.S.P.R. 80, ¶ 12 (2000) (finding that Postal Service

employees are not covered by 5 C.F.R. § 315.806).

2018, and therefore he had more than 1 year of current continuous service at the

time of his February 16, 2019 termination. PFR File, Tab 1 at 2-4, 8. However,

Federal employment is not governed by contract principles. In the Federal

personnel system, employees are appointed to positions, with their terms of

employment being specified primarily in position descriptions. Appointment, not

contract law, is the central concept. Bartel v. Federal Aviation Administration,

14 M.S.P.R. 24, 35-36 (1982), aff’d as modified, 30 M.S.P.R. 451 (1986). A

Federal appointment occurs when the appointing authority has performed the last

act to effect the appointment. Dardis v. Department of Defense, 9 M.S.P.R. 411

(1982). The record shows that, as of February 6, 2018, the appellant’s

appointment had not yet been finalized, IAF, Tab 1 at 18, and there is no evidence

to show that it was finalized at any time before he entered on duty. Moreover, the

statute requires that the appellant have at least 1 year of current continuous

service. 5 U.S.C. § 7511(a)(1)(B). Service begins when an individual enters on

duty, which in this case did not occur until April 28, 2018. IAF, Tab 4 at 64; see

Calixto v. Department of Defense, 120 M.S.P.R. 557, ¶ 19 (2014). Because the

appellant lacked 1 year of current continuous service at the time of his

termination, we agree with the administrative judge that he lacks Board appeal

rights under 5 U.S.C. chapter 75. ID at 4-5.

The appellant also argues that the agency violated his due process rights as

well as several provisions of the agency’s Employee and Labor Relations Manual.

PFR File, Tab 1 at 4-6, 8. However, the appellant’s arguments concerning due

process and procedural error do not confer upon the Board an independent basis

to review matters outside its statutory jurisdiction. See Anderson v. General

Services Administration, 56 M.S.P.R. 316, 320 (1993), aff’d, 12 F.3d 1069

(Fed. Cir. 1993); Riddick v. Department of the Navy, 41 M.S.P.R. 369, 372

(1989).

Finally, the appellant argues that the Board may have jurisdiction over

cases in which an employee was deceived or coerced into resigning or retiring.

PFR File, Tab 1 at 6-8. This is true, but the appellant in this case did not resign

or retire; he was terminated. IAF, Tab 4 at 66-72. Moreover, the Board has

jurisdiction over such appeals only when the chapter 75 jurisdictional criteria

have otherwise been met, see Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8

(2013), which is not the case here.

NOTICE OF APPEAL RIGHTS 4

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 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).

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

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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. 5 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