The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK STANLEY PYRDECK, JR., DOCKET NUMBER
Appellant, DE-315H-24-0154-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 20, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Frank Stanley Pyrdeck, Jr. , Tucson, Arizona, pro se.
Lisa Wood , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
Effective June 6, 2022, the agency appointed the appellant to a
competitive-service position as a GS-12 Logistics Management Specialist, subject
to completion of a 2-year probationary period. Initial Appeal File (IAF), Tab 1
at 1, Tab 6 at 42-43. Effective January 11, 2024, the agency issued a decision
terminating the appellant for unsatisfactory work performance that outlined
instances of his alleged “problematic conduct” and performance deficiencies.
IAF, Tab 6 at 28-33.
On January 25, 2024, the appellant filed a Board appeal challenging the
manner and the merit of his termination and acknowledged on his appeal form
that he was serving in a probationary period at the time of his termination. IAF,
Tab 1 at 2. He also indicated that he had filed a complaint with the Office of
Special Counsel (OSC) challenging his termination on January 19, 2024, and
provided a copy of the complaint he provided to OSC with his initial appeal. Id.
at 3, 13-19. The administrative judge issued an order informing the appellant that
the Board may not have jurisdiction over his appeal based on his probationer
status, notified him of the standards for establishing Board jurisdiction under
chapter 75 and 5 C.F.R. §§ 315.805-315.806, and directed him to file evidence
and argument on that issue. IAF, Tab 5. The appellant responded, arguing that
he met the definition of “employee” under chapter 75 and that the Board had
jurisdiction over his appeal. IAF, Tab 5 at 3-5. Specifically, he argued that
although he was appointed to a 2-year probationary period at the time he was
hired, pursuant to the National Defense Authorization Act for Fiscal Year 2022
(2022 NDAA), Pub. L. No. 117-81, 135 Stat. 1541 , the Department of Defense
(DOD) had rescinded and replaced the 2-year probationary period with a 1-year
probationary period, effective December 31, 2022, and he had completed more
3
than 1 year of service as of his January 11, 2024 separation. Id. at 3-4, 7-16.
Alternatively, he argued that even if a 2-year probationary period applied to his
appointment, the DOD provision setting forth a 2-year probationary period was
incompatible with 5 C.F.R. §§ 315.801, 315.802(a), which stated that the
probationary period was limited to 1 year and could not be extended. Id. at 4.
Consequently, he argued that he was an “employee” with Board appeal rights at
the time of his termination and the Board had jurisdiction over his appeal. Id.
at 4-5.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 1, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction, IAF, Tab 7, Initial Decision (ID) at 1, 8. First addressing the
appellant’s OSC complaint, the administrative judge noted that the appellant filed
an OSC complaint challenging his termination prior to filing his Board appeal,
and so it appeared that he had elected to challenge his termination through the
procedures for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222,
which would ordinarily preclude him from pursuing a later Board appeal under
chapter 75. ID at 2 n.3. He nevertheless determined that because the agency’s
termination letter failed to apprise the appellant of the preclusive effect of his
decision to challenge his termination with OSC, his election was not a “valid,
informed election” under 5 U.S.C. § 7121, and so he was not precluded from
filing a subsequent Board appeal challenging the agency’s action. Id. (citing
Kaszowski v. Department of the Air Force, 2023 MSPB 15, ¶ 5; Agoranos v.
Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013)). Turning to the
appellant’s claims on appeal, the administrative judge concluded that the
appellant had failed to nonfrivolously allege that he met the definition of an
“employee” with adverse action appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i)
or (ii). ID at 4-7. He further concluded that the appellant had failed to
nonfrivolously allege that he had a regulatory right of appeal under 5 C.F.R.
4
§§ 315.805-315.806. ID at 7-8. Consequently, he dismissed the appeal for lack
of jurisdiction. ID at 8.
The appellant has timely filed a petition for review in which he reargues
that DOD’s interpretation of 5 U.S.C. § 1599e conflicts with 5 C.F.R. §§ 315.801,
315.802(a) and provides copies of emails he sent to DOD requesting additional
guidance regarding their interpretation of this provision. Petition for Review
(PFR) File, Tab 1 at 4, 6-10. The appellant also notes that on March 25, 2024,
after the initial decision was issued, OSC terminated its investigation into his
complaint and provided him with notice of his Board appeal rights, and he
provides a copy of OSC’s close-out letter. Id. at 4-5, 11. The agency has filed a
response, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly concluded that the Board lacks jurisdiction
under chapter 75 and OPM regulations over the appellant’s probationary
termination.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation; the Board does not have jurisdiction
over all matters alleged to be unfair or incorrect. Johnson v. U.S. Postal Service,
67 M.S.P.R. 573, 577 (1995); Maddox v. Merit Systems Protection Board,
759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board jurisdiction under 5 U.S.C.
chapter 75, an individual must show, among other things, that he satisfies one of
the definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of
the Army, 119 M.S.P.R. 391, ¶ 5 (2013). An individual in the competitive service
can establish that he is an employee with Board appeal rights if he is not serving
a probationary or trial period under an initial appointment or has completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. Id.; see 5 U.S.C. § 7511(a)(1)(A)(i), (ii).
However, as the administrative judge correctly noted, in 2015, Congress
amended the statute that defines “employee” for the purpose of chapter 75 appeal
5
rights for competitive-service positions within DOD to state that such
appointments were subject to a 2-year probationary period instead of 1 -year and
that an individual only qualified as an “employee” with Board appeal rights under
5 U.S.C. § 7511(a)(1)(A)(ii) if he completed 2 years of current continuous
service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d), repealed by 2022 NDAA, Pub. L.
No. 117-81, 135 Stat. 1541; see National Defense Authorization Act for Fiscal
Year 2016, Pub. L. No. 114-92, § 1105, 129 Stat. 726 (Nov. 25, 2015); ID at 4.
Thereafter, on December 27, 2021, Congress passed the 2022 NDAA, which
repealed the 2-year probationary requirement and replaced it with a 1-year
probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950; Bryant v.
Department of the Army, 2022 MSPB 1, ¶ 8; ID at 5. In doing so, however,
Congress specified that the provision in the 2022 NDAA repealing and replacing
the 2-year probationary period with a 1-year period did not go into effect until
December 31, 2022, and only applied to individuals appointed on or after that
date. Bryant, 2022 MSPB 1, ¶ 8; see Pub. L. No. 117-81, § 1106(a)(2); ID at 4-6.
Consequently, the administrative judge correctly concluded that the appellant’s
appointment, which was effective June 6, 2022, remained subject to the 2-year
probationary period requirement. Bryant, 2022 MSPB 1, ¶¶ 8-9; ID at 6.
Because the appellant was appointed the position effective June 6, 2022, and was
terminated effective January 11, 2024, prior to completion of the 2-year
probationary period, we agree with the administrative judge that the appellant
failed to meet the first prong of the definition of “employee” set forth in 5 U.S.C.
§ 7511(a)(1)(A)(ii). ID at 5-6.
Alternatively, a DOD employee who has not served his full 2-year
appointment can show that he has completed the probationary period by “tacking”
on prior Federal service if (1) the prior service was rendered immediately
preceding the probationary appointment; (2) it was performed in the same agency;
(3) it was performed in the same line of work; and (4) it was completed with no
more than one break in service of less than 30 days. Hurston v. Department of
6
the Army, 113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R. § 315.802(b). An individual can
also show that, while he may be a probationer, he is an “employee” with chapter
75 appeals rights because, immediately preceding the adverse action at issue, he
had completed at least 2 years of current continuous service without a break in
Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9. As
the administrative correctly concluded, because the appellant had not alleged that
he had any prior Federal service, he also failed to meet the second prong of the
definition of “employee” set forth in section 7511(a)(1)(A)(ii). ID at 6-7.
Finally, an individual in the competitive service who does not have a
statutory right of appeal may nevertheless have a regulatory right to appeal under
5 C.F.R. § 315.806 if he alleges that his termination was based on partisan
political reasons or marital status discrimination, or that his termination was
based in whole or in part on conditions arising before his appointment and was
not effected in accordance with certain procedural requirements under 5 C.F.R.
§ 315.805. Walker, 119 M.S.P.R. 391, ¶ 5. On review, the appellant has not
challenged the administrative judge’s finding that he did not allege that his
termination was based on conditions arising before his appointment, that it was
because of his marital status, or that it was based on partisan political reasons,
which would give rise to a regulatory right of appeal under 5 C.F.R.
§§ 315.805-315.806. For the foregoing reason, we find no reason to disturb the
administrative judge’s finding that the appellant failed to meet his burden of
proving that the Board has jurisdiction over his appeal challenging his
termination.
We nevertheless remand the appeal for further proceedings because the appellant
did not receive explicit notice of what is required to establish Board jurisdiction
based on his allegations.
Despite the above finding, we conclude that the appeal must be remanded
for further proceedings under 5 U.S.C. § 7701 because it appears that the
appellant may be attempting to raise an individual right of action (IRA) appeal
7
under the Whistleblower Protection Enhancement Act of 2012. As previously
noted, in his initial appeal, the appellant provided evidence that he had filed an
OSC complaint challenging his termination prior to filing his Board appeal. IAF,
Tab 1 at 3. The administrative judge acknowledged that the appellant had
provided a copy of his OSC complaint with his initial appeal, but determined that
because the agency had failed to inform the appellant that his decision to seek
corrective action from OSC could preclude a later challenge of his termination in
a Board appeal under chapter 75, his election to file with OSC was not “knowing
and informed” and thus did not preclude him from filing a subsequent IRA
appeal. ID at 2 n.3 (citing Kaszowski, 2023 MSPB 15, ¶ 5; Agoranos,
119 M.S.P.R. 498, ¶ 14).
An appellant must receive explicit information on what is required to
establish Board jurisdiction. Burgess v. Merit Systems Protection Board,
758 F.2d 641, 643-44 (Fed. Cir. 1985); Burwell v. Department of the Army,
78 M.S.P.R. 645, ¶¶ 8-9 (1998) (remanding an appeal due to the administrative
judge’s failure to advise the appellant what was required to establish Board
jurisdiction over an IRA appeal). The administrative judge’s jurisdictional order
informed the appellant of his burden of establishing jurisdiction over his appeal
as a challenge to his probationary termination but did not apprise the appellant of
his burden of proving Board jurisdiction over his appeal as an IRA appeal. IAF,
Tab 4. The agency’s response to the administrative judge’s jurisdictional order
identified that the order had not provided jurisdictional notice for an IRA appeal,
provided some information regarding the appellant’s burden, and requested that a
second jurisdictional order outlining the appellant’s IRA jurisdictional burdens be
issued. IAF, Tab 6 at 15-18; see Harris v. U.S. Postal Service, 112 M.S.P.R. 186,
¶ 9 (2009) (stating that an administrative judge’s failure to provide an appellant
with proper Burgess notice can be cured if the agency’s pleadings or the initial
decision contain the notice that was otherwise lacking). Nevertheless, the
administrative judge did not issue a supplemental IRA jurisdictional order, and
8
although the initial decision identified the appellant’s filing of an OSC complaint
and apparent attempt to pursue an IRA appeal, it too did not identify the
appellant’s burden of establishing Boad jurisdiction over his appeal as an IRA.
ID at 1-8.
The appellant needs to be advised that to establish Board jurisdiction over
an IRA appeal he must show that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations of the following: (1) he engaged in
whistleblowing activity by making a disclosure protected under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); 5 U.S.C. §§ 1214(a)
(3), 1221(a), (e)(1). Because the appellant was not so informed, it is necessary to
remand this appeal to the field office to provide him with an adequate opportunity
to establish jurisdiction. 2 Burwell, 78 M.S.P.R. 645, ¶ 9.
2
As previously noted, in his initial appeal, the appellant identified that he had filed a
complaint with OSC prior to filing his Board appeal and provided a copy of his
complaint. IAF, Tab 1 at 3, 11-19. With his petition for review, the appellant has
included a copy of a March 25, 2024 close-out letter from OSC providing him with
Board appeal rights. PFR File, Tab 1 at 11. The March 25, 2024 OSC close-out letter
postdates the close of the record and therefore meets the Board’s definition of new
evidence. PFR File, Tab 1 at 11; ID at 1; see Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). The close-out letter is also
material because it bears on the issue of the Board’s jurisdiction over the appeal as an
IRA. Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015)
(acknowledging that the issue of jurisdiction is always before the Board and may be
raised at any time), aff’d, 640 F. App’x 864 (Fed. Cir. 2016). Accordingly, we have
considered it. On remand, the administrative judge should consider whether the
appellant has established that he has exhausted his administrative remedies with OSC
based on the March 25, 2024 close-out letter in addition to considering whether he has
established the remaining jurisdictional elements of an IRA appeal. Edwards v.
Department of the Air Force, 120 M.S.P.R. 307, ¶ 18 (2013) (instructing the
administrative judge on remand to consider the remaining jurisdictional elements in an
IRA appeal after determining that the appellant had proven OSC exhaustion), overruled
on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39,
9
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
¶ 14; see Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010)
(noting that the Board’s ordinary practice is to adjudicate an IRA appeal that was
premature when it was filed but becomes ripe while pending with the Board); Becker v.
Department of Veterans Affairs, 112 M.S.P.R. 516, ¶ 7 (2009) (same).