Opinion

Andrew Amavisca v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Oct 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.1%

reaching the same conclusion when the applicable service requirement was 1 year under 5 U.S.C. 711(a)(1)(A)(ii

How later courts described this case

reaching the same conclusion when the applicable service requirement was 1 year under 5 U.S.C. 711(a)(1)(A)(ii

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW P. AMAVISCA, DOCKET NUMBER

Appellant, SF-315H-20-0500-I-1

DEPARTMENT OF THE AIR FORCE, DATE: October 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew P. Amavisca , La Mirada, California, pro se.

Kathryn Price , Los Angeles Air Force Base, El Segundo, California,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed his probationary 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

based on an 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

Effective August 20, 2018, the agency appointed the appellant to a GS-11

Contract Specialist position in the competitive service, subject to a 2-year

probationary period. Initial Appeal File (IAF), Tab 8 at 22-25. On May 7, 2020,

while the appellant was still serving his probationary period, the agency notified

him that he would be terminated from his position, effective May 9, 2020, due to

his failure to demonstrate an acceptable level of performance. IAF, Tab 1 at 5, 9,

Tab 8 at 20-21. The appellant subsequently requested to resign and was allowed

to do so effective May 12, 2020. IAF, Tab 8 at 15-19.

The appellant filed an appeal with the Board challenging the termination.

IAF, Tab 1 at 1-5. He requested a hearing. Id. at 2. The administrative judge

issued orders informing the appellant of his burden to establish Board jurisdiction

over his alleged involuntary termination and ordered him to file evidence and

argument nonfrivolously alleging that his appeal was within the Board’s

jurisdiction. IAF, Tabs 3, 9. The agency moved to dismiss the appeal for lack of

jurisdiction. IAF, Tab 8, Subtab 1 at 6-11. The appellant responded to the

administrative judge’s orders and the agency’s submissions, disputing that he had

poor performance. IAF, Tab 6 at 4-5, Tab 10 at 4-7. He further argued that the

agency did not follow its own policies when it issued the termination and that his

resignation was coerced. IAF, Tab 10 at 7-10.

In an initial decision, the administrative judge dismissed the appeal without

holding the requested hearing, finding that the appellant failed to make a

nonfrivolous allegation of Board jurisdiction. IAF, Tab 14, Initial Decision (ID)

at 4-7. The appellant has filed a petition for review of the initial decision, and

the agency has responded. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden

of proof on the issue of jurisdiction, and if he makes a nonfrivolous allegation

that the Board has jurisdiction over an appeal, he is entitled to a hearing on the

jurisdictional question. Yiying v. Department of Agriculture, 106 M.S.P.R. 178,

¶ 8 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with the administrative

judge that the appellant failed to raise a nonfrivolous allegation of Board

jurisdiction over the instant appeal.

At the time relevant to this appeal, individuals appointed to a permanent

competitive-service position at the Department of Defense, including the

Department of the Air Force, were subject to a 2-year probationary period and

only qualified as an “employee” with chapter 75 appeal rights if they completed

2 years of current continuous service. 5 U.S.C. § 7511(a)(1)(A)(ii) (2018);

10 U.S.C. § 1599e(a), (b)(1)(A), (d) (repealed 2022); Bryant v. Department of the

Army, 2022 MSPB 1, ¶ 8 & n.2. 2 Here, it is undisputed that the appellant was

At the time of the appellant’s appointment to his competitive-service position in

August 2018, an individual appointed to a permanent competitive-service position at the

Department of Defense (DOD) was subject to a 2-year probationary period and only

terminated before completing 2 years of service. IAF, Tabs 1, 6, 8, 10, 12. The

administrative judge found that the appellant had less than 2 years of Federal

civilian service. ID at 5-6. The appellant does not dispute this finding on review,

and we discern no basis to disturb it.

Prior military service cannot be tacked onto a period of Federal civilian

service in order to meet the 2-year current continuous service requirement. See

Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322-23 (Fed. Cir.

2012) (reaching the same conclusion when the applicable service requirement was

1 year under 5 U.S.C. 711(a)(1)(A)(ii), relying on 5 C.F.R. § 752.402 (defining

current continuous employment as “a period of employment or service

immediately preceding an adverse action without a break in Federal civilian

employment of a workday”)); 5 C.F.R. § 315.802(b) (reflecting that”[p]rior

civilian service . . . counts toward completion of probation” in the competitive

service). While the appellant had over 3 years of prior military service, the

administrative judge properly found that the appellant’s prior military service

could not be tacked on under 5 C.F.R. § 315.802(b). ID at 5. On review, the

appellant identifies himself as a disabled veteran but does not dispute the

administrative judge’s determination that he is not entitled to tacking. PFR File,

Tab 1 at 5. We discern no reason to disturb this finding.

A probationary employee in the competitive service may appeal to the

Board under limited circumstances set forth at 5 C.F.R. § 315.806. Henderson v.

Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). The Board has

qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2018) and 10 U.S.C.

§ 1599e (2018) if he was not serving a probationary or trial period under an initial

appointment, or if he had completed 2 years of current continuous service under other

than a temporary appointment limited to 1 year or less. IAF, Tab 11 at 41; see Bryant v.

Department of the Army, 2022 MSPB 1, ¶ 8. In December 2021, while this appeal was

pending on petition for review, Congress repealed 10 U.S.C. § 1599e and the 2 -year

probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However,

this repeal was made effective December 31, 2022, and only applied to individuals

appointed on or after that date. 10 U.S.C. § 1599e note; Bryant, 2022 MSPB 1, ¶ 8.

The repeal of 10 U.S.C. § 1599e does not affect the outcome of this appeal because the

appellant was appointed in August 2018, before the effective date of the repeal.

jurisdiction over termination appeals under 5 C.F.R. § 315.806 in situations in

which the agency’s action was improperly based on partisan political reasons or

marital status, or taken through improper procedures when the employee was

terminated for reasons based in whole or in part on conditions arising prior to his

appointment. Henderson, 114 M.S.P.R. 149, ¶ 9. The administrative judge found

that the appellant made no allegation that his termination was based on

pre-appointment or partisan political reasons or marital status, and the appellant

likewise has made no such argument on review. ID at 6; PFR File, Tab 1 at 4-5;

IAF, Tabs 1, 6, 12.

We have reviewed the appellant’s remaining arguments and find that he has

presented no basis for disturbing the findings of the administrative judge

concerning his failure to make a nonfrivolous allegation of Board jurisdiction.

The appellant does not challenge the administrative judge’s jurisdictional

findings, but instead, he raises arguments regarding the merits of the agency’s

termination decision. PFR File, Tab 1 at 4-5. Specifically, he appears to again

dispute the agency’s assessment that his performance was poor. PFR File, Tab 1

at 5. He also reasserts that he was coerced to resign in lieu of termination for

poor performance. Id. The appellant’s arguments as to the merits of his

termination are immaterial to the jurisdictional issue before us. Rivera v.

Department of Homeland Security, 116 M.S.P.R. 429, ¶ 13 (2011). We agree

with the administrative judge’s finding that the Board has no jurisdiction to

review the appellant’s claim that his resignation was involuntary. ID at 6-7; see

Link v. Department of the Navy, 3 M.S.P.R. 187, 189 (1980) (finding the

appellants’ alleged involuntary resignations during their probationary periods

provided them with no greater right of appeal to the Board than they would have

had if they had been terminated). Further, the administrative judge properly

determined that, absent an otherwise appealable action, the Board lacks

jurisdiction over claims that the agency committed harmful procedural error in

effectuating the appellant’s termination. ID at 7; PFR File, Tab 1 at 4-5; see

Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010) (finding that,

because the Board had no jurisdiction over the probationary termination appeal,

the Board also had no independent jurisdiction to adjudicate the appellant’s

discrimination and harmful error claims); Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under

5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,

681 F.2d 867, 871-73 (D.C. Cir. 1982).

The appellant also submitted several documents for the Board’s

consideration on review, namely, a copy of Air Force Instruction 36-130, his

termination memorandum, and performance appraisals for rating periods

August 20, 2018, to March 31, 2019, and April 1, 2019, to March 31, 2020. PFR

File, Tab 1 at 6-58. These documents provide no basis to disturb the initial

decision. They are in the record below, and, in any event, none of the documents

are material to the jurisdictional issue. IAF Tab 1 at 9-11, Tab 6 at 6-13, Tab 10

at 11-63; see 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a

petition for review if it contains new and material evidence); see also Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (observing that evidence

that is already a part of the record is not new).

Accordingly, for the reasons discussed above, we deny the appellant’s

petition for review and affirm the initial decision dismissing his probationary

termination appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 3

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

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.

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).

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. 4 The court of appeals must receive your

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

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