The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYLE R. WHALEN, DOCKET NUMBER
Appellant, PH-315H-25-0178-I-1
v.
DEPARTMENT OF DATE: April 7, 2026
TRANSPORTATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
George Dale Condon , Massena, New York, for the appellant.
Eric Michael Knapp , Esquire, and Donna O’Berry , Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, 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 petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND this appeal to the Northeastern Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
On May 7, 2023, the agency appointed the appellant to the
competitive-service position of Laborer, WG-3502-03, with a not-to-exceed date
of December 30, 2023. Initial Appeal File (IAF), Tab 9 at 8. On December 17,
2023, he was converted to the excepted-service position of Maintenance
Mechanic Helper, WG-4749-05, pursuant to the Veterans Recruitment
Appointment Authority (VRA). Id. at 11. The Standard Form 50 (SF-50)
documenting the appointment indicates that it was subject to a 1-year trial period
beginning December 17, 2023, as well as a 2-year trial period “for VRA.” Id.
The agency terminated the appellant for misconduct on November 26, 2024. IAF,
Tab 6 at 8-10, Tab 10 at 4.
On December 22, 2024, the appellant appealed his probationary termination
to the Board arguing that the agency’s allegations of misconduct were based on
hearsay and exaggeration. IAF, Tab 1 at 2. The administrative judge issued an
acknowledgement order advising the appellant of what he must allege to establish
Board jurisdiction as either an employee with a statutory right to appeal, or a
probationary employee with a regulatory right to appeal a termination based on
marital status, partisan political reasons, or conditions arising before
appointment. IAF, Tab 2 at 2-5. The order also informed the appellant how he
could show that he had completed his probationary period by tacking on prior
service. Id. at 4-5. The appellant did not respond. In its response, the agency
asserted that the appellant was serving a probationary period in a VRA
excepted-service appointment at the time of his termination and submitted various
SF-50s and copies of the appellant’s termination letter, the appellant’s VRA
agreement, a firm job offer and acceptance letter for the Maintenance Mechanic
Helper position, a tentative job offer and acceptance letter for the Laborer
3
position, and a job description for the Laborer position. IAF, Tabs 9-10. Without
holding the requested hearing, the administrative judge issued an initial decision
on January 17, 2025, dismissing the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge improperly found that the appellant did not establish
that he had a statutory right to appeal his probationary termination to the Board.
The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation . Winns v. U.S.
Postal Service, 124 M.S.P.R. 113, ¶ 7 (2017), aff’d sub nom. Williams v. Merit
Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018); see Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C.
chapter 75, subchapter II, an individual who meets the definition of “employee”
at 5 U.S.C. § 7511(a)(1) generally has the right to challenge his removal from the
Federal service by filing an appeal with the Board. Maibaum v. Department of
Veterans Affairs, 116 M.S.P.R. 234, ¶ 9 (2011); see 5 U.S.C. §§ 7512(1), 7513(d).
A preference-eligible employee in the excepted service meets the definition of
“employee” with Board appeal rights if he can prove he has completed at least
1 year of current continuous service in the same or similar positions. 5 U.S.C.
§ 7511(a)(1)(B); Maibaum, 116 M.S.P.R. 234, ¶ 9. Notably, for a preference
eligible in the excepted service, the absence or completion of a probationary or
trial period is not determinative of “employee” status. Maibaum, 116 M.S.P.R.
234, ¶ 9. Rather, the dispositive issue is whether the appellant satisfied the
1-year current continuous service requirement at the time of his separation. Id.
“Current continuous service” means a period of employment or service
immediately preceding an adverse action without a break in Federal civilian
employment of a workday. Maibaum, 116 M.S.P.R. 234, ¶ 14; 5 C.F.R.
§ 752.402.
4
Here, it is undisputed that the appellant was a preference-eligible employee
and that he served in a competitive-service position of Laborer from May 7 to
December 17, 2023, and in an excepted-service position of Maintenance
Mechanic Helper from December 17, 2023, until his termination on November 26,
2024. Accordingly, if the appellant’s Laborer and Maintenance Mechanic Helper
positions were similar, as the appellant argues on review, Petition for Review
(PFR) File, Tab 1 at 4-5, he would have more than 1 year of continuous service
and thus be an “employee” with Board appeal rights under 5 U.S.C.
§ 7511(a)(1)(B), see McCrary v. Department of the Army, 103 M.S.P.R. 266,
¶¶ 9-15 (2006) (finding that prior service in the competitive service counted
toward the completion of an individual’s probationary period in the excepted
service because it was in the same line of work).
The regulations implementing 5 U.S.C. chapter 75, subchapter II, define
“similar positions” as “positions in which the duties performed are similar in
nature and character and require substantially the same or similar qualifications,
so that the incumbent could be interchanged between the positions without
significant training or undue interruption to the work.” 5 C.F.R. § 752.402; see
Maibaum, 116 M.S.P.R. 234, ¶ 15. In addition, positions may be deemed
“similar” if they are in the “same line of work,” which has been interpreted as
involving “related or comparable work that requires the same or similar skills.”
Jones v. Merit Systems Protection Board, 98 F.4th 1376, 1381 (Fed. Cir. 2024)
(quoting Mathis v. U.S. Postal Service, 865 F.2d 232, 234 (Fed. Cir. 1988));
Maibaum, 116 M.S.P.R. 234, ¶ 15. Stated slightly differently, positions are
similar “if experience in [one] position demonstrates the knowledge, skills, and
abilities required to perform the work of the other job.” Maibaum, 116 M.S.P.R.
234, ¶ 15 (quoting Coradeschi v. Department of Homeland Security , 439 F.3d
1329, 1333 (Fed. Cir. 2006); citing Mathis, 865 F.2d at 234). In conducting this
analysis, the nature and character of the work actually performed must be
5
considered. Jones, 98 F.4th at 1381; Maibaum, 116 M.S.P.R. 234, ¶ 15 (citing
Coradeschi, 439 F.3d at 1333-34; Mathis, 865 F.2d at 233-35).
For the first time on petition for review, the appellant argues that he
completed 18 months of continuous Federal service because he performed the
same duties throughout his employment with the agency, and he submits a copy
of the job description for the Maintenance Mechanic Helper position. PFR File,
Tab 1 at 4-6, 8-11. The Board generally will not consider evidence and argument
submitted for the first time on review absent a showing that it was previously
unavailable despite the party’s due diligence, and the appellant has not credibly
explained why this evidence and argument was not available to him below. Clay
v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Nevertheless,
having reviewed the limited evidence in the appeal record, we find that the initial
decision is based on an erroneous finding of material fact and that the matter
requires remand for further adjudication.
The administrative judge found that the Laborer and Maintenance
Mechanic Helper positions were “totally unrelated” and, therefore, that the
appellant’s 7 months of prior service as a Laborer could not be counted toward
the completion of the 1-year requirement. ID at 4. Among other things, the
appellant argues that the administrative judge had insufficient evidence to make
this determination because only the job description for the Laborer position was
in the record and thus an accurate comparison could not be made. PFR File,
Tab 1 at 4-5. We agree. Indeed, the administrative judge cites no support in the
record for his finding that the positions are dissimilar. To the contrary, while
even a comparison of the job titles alone suggests a potential overlap in duties,
the job description for the Laborer position—which the administrative judge had
before him—consists primarily of quintessential maintenance duties, including
janitorial services; operating heavy-duty floor maintenance equipment; mowing
the lawn; keeping walkways free of snow and ice; performing minor repairs to
6
buildings and furnishings, such as changing light bulbs; and supporting the
maintenance shop. IAF, Tab 9 at 29. Therefore, the limited record does not
support the administrative judge’s finding but requires further development to
determine whether the Laborer and Maintenance Mechanic Helper positions are
sufficiently similar such that the appellant’s prior service can be counted toward
the 1-year requirement. 2
Accordingly, we grant the appellant’s petition for review, vacate the initial
decision, which dismissed the appeal for lack of jurisdiction, and remand this
appeal for further adjudication. On remand, the administrative judge shall
develop the record on the question of whether the appellant’s service in the
Laborer position is sufficiently similar to his service in the Maintenance
Mechanic Helper position to count toward the 1-year continuous service
requirement and thereby establish Board jurisdiction by showing that the
appellant qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(B). The
appellant bears the burden of proving Board jurisdiction by a preponderance of
the evidence, but if he makes a nonfrivolous allegation that the Board has
2
After finding that the appellant did not have 1 year of current continuous service and
thus no right to appeal his probationary appeal to the Board under 5 U.S.C.
§ 7511(a)(B)(1), the administrative judge found that the appellant failed to establish
Board jurisdiction under 5 C.F.R. § 315.806 (2024), i.e., that he was terminated due to
marital status discrimination, partisan political reasons, or because of preappointment
matters. The appellant has not challenged this finding on review. Because VRA
appointments are in the excepted service, 5 C.F.R. part 315 does not apply directly to
individuals appointed under that authority. However, individuals appointed under the
authority of the VRA have been granted the same appeal rights during the first year of
their trial periods as competitive-service employees. 5 C.F.R. § 307.105 (2025); see
Maibaum, 116 M.S.P.R. 234, ¶ 18. The regulatory right of an employee in the
competitive service to appeal a termination to the Board on the limited ground
previously set forth in 5 C.F.R. part 315 was rendered inoperative and without effect for
actions taken on or after April 24, 2025, and has now been formally rescinded as
directed by Executive Order 14284. See Strengthening Probationary Periods in the
Federal Service, 90 Fed. Reg. 26727-01 (June 24, 2025). As the appellant was
terminated before April 24, 2025, we need not consider whether the rights granted to
individuals appointed under the VRA were also rendered inoperative by the Executive
Order.
7
jurisdiction, he is entitled to a hearing on the jurisdictional question. Tolbert v.
Small Business Administration, 104 M.S.P.R. 418, ¶¶ 6-7, aff’d, 245 F. App’x 964
(Fed. Cir. 2007); 5 C.F.R. § 1201.56(b)(2)(i)(A).
Additionally, on remand, the administrative judge shall address the
appellant’s allegation that his supervisor “did not like [him]” and had stated that
it “is ridiculous they have to hire veterans over qualified applicants.” IAF, Tab 1
at 2. This allegation suggests that the appellant may be claiming that his
probationary termination was a result of anti-military discrimination in violation
of the Uniformed Services Employment and Reemployment Rights Act
(USERRA). Thus, the administrative judge shall notify the appellant of his rights
and burdens of proof under USERRA and adjudicate the claim, either as part of
this appeal or by docketing it as a separate appeal, should the appellant wish to
pursue it.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order. 3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
On review, the appellant asserts his intention to make certain discovery requests. PFR
File, Tab 1 at 6. On remand, the appellant may engage in discovery consistent with the
Board’s regulations and the administrative judge’s instructions.