The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY Z. ALDERETE, DOCKET NUMBER
Appellant, SF-315H-14-0126-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 5, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony Z. Alderete, Ewa Beach, Hawaii, pro se.
Sally R. Bacon, Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his probationary termination for lack of jurisdiction.
Generally, we grant petitions such as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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
¶2 Effective March 10, 2013, the agency appointed the appellant to the WG-04
position of Store Worker in the competitive service. Initial Appeal File (IAF),
Tab 6, Subtab 4j. The career-conditional appointment was subject to the
completion of a 1-year initial probationary period. Id. On November 22, 2013,
prior to the completion of the 1-year period, the agency terminated the appellant
from his position for post-appointment reasons. IAF, Subtabs 4a, 4b.
¶3 The appellant filed a timely appeal challenging his termination. IAF, Tab 1.
The administrative judge issued an acknowledgment order that apprised the
appellant of his burden of establishing the Board’s jurisdiction over his appeal,
including notice of the regulatory right to appeal available to probationers and the
requirements for meeting the definition of an “employee” for purposes of
5 U.S.C. chapter 75 appeal rights. IAF, Tab 2. In response to the
acknowledgment order, the appellant appeared to argue the merits of his
termination and claimed that he had completed 5 and a half years of service at the
Department of Homeland Security (DHS). IAF, Tab 3 at 3. The administrative
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judge issued two orders reopening the record to provide the appellant with an
opportunity to submit evidence and argument regarding his prior service with
DHS; however, the appellant did not respond to either order. IAF, Tabs 7, 9. In
an initial decision issued without holding the requested hearing, the
administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 10,
Initial Decision (ID) at 1, 4. The administrative judge found that the appellant
failed to prove that he was an “employee” within the meaning of 5 U.S.C.
§ 7511(a)(1)(A). ID at 4. The administrative judge additionally found that the
appellant did not allege that his termination was based on marital status
discrimination or partisan political reasons. ID at 4. Accordingly, the
administrative judge found that the appellant failed to make a nonfrivolous
allegation of jurisdiction. ID at 4.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual
must, among other things, show that he satisfies one of the 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). For an individual in the competitive
service, like the appellant, this means that he must either: (1) not be serving a
probationary or trial period under an initial appointment; or (2) have completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); Walker, 119 M.S.P.R. 391,
¶ 5.
¶6 An appellant who has not served a full year under his appointment can show
that he has completed the probationary period, and so is no longer a probationer,
by tacking on prior service if: (1) the prior service was rendered immediately
preceding the probationary appointment; (2) it was performed in the same agency;
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(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. Henderson v. Department of
the Treasury, 114 M.S.P.R. 149, ¶ 10 (2010); see 5 C.F.R. § 315.802(b).
Alternatively, an employee can show that, while he may be a probationer, he is an
“employee” with chapter 75 appeal rights because, immediately preceding the
adverse action, he had completed at least 1 year of current continuous service
without a break in federal civilian employment of a workday.
Henderson, 114 M.S.P.R. 149, ¶ 10.
¶7 The administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that he meets either definition of “employee” set forth
in 5 U.S.C. § 7511(a)(1)(A). ID at 4. There is no dispute that the appellant
served less than a full year in his Store Worker position when he was terminated
during his probationary period. ID at 2, 4. The appellant did not make a
nonfrivolous allegation that his prior DHS service could be counted toward
completion of his probationary period or “1 year of continuous service”
under 5 U.S.C. § 7511(a)(1)(A). ID at 4. In particular, the appellant failed to
provide the dates of employment with DHS or allege that he had no material
break in service between DHS and the Department of Defense (DOD), despite
being afforded multiple opportunities to address these specific issues. 2 ID at 4;
see IAF, Tabs 7, 9. The appellant reasserts in his petition for review that he has 5
and a half years of prior service with DHS and submits a Standard Form (SF)-50
documenting such service. PFR File, Tab 1 at 3-4. His claim of DHS service and
SF-50 were already provided in the initial appeal, and thus are not “new”
under 5 C.F.R. § 1201.115. IAF, Tab 3 at 3, Tab 8 at 6; see Meier v. Department
of the Interior, 3 M.S.P.R. 247, 256 (1980). Further, his argument and evidence
on review are not material because they do not specify whether there was any
2
Even if there were no break in service, the appellant’s DHS service could not count
toward completion of his DOD probationary period because it was not completed with
the same agency. See 5 C.F.R. § 315.802(b)(1).
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break in service. Thus, the appellant has provided no basis upon which to disturb
the administrative judge’s finding that he failed to make a nonfrivolous allegation
that he is an “employee” with 5 U.S.C. chapter 75 appeal rights.
¶8 Individuals in the competitive service who do not satisfy either definition of
“employee” set forth in 5 U.S.C. § 7511(a)(1)(A) may nevertheless have the right
to appeal a termination to the Board under 5 C.F.R. § 315.806.
Walker, 119 M.S.P.R. 391, ¶ 5. However, the Board’s jurisdiction over
termination appeals under that section is limited to situations in which the
employee alleges: (1) he was discriminated against based on his marital status;
(2) the agency action was based on partisan political reasons; or (3) the agency
action was based (in whole or in part) on pre-appointment reasons and the agency
did not follow the procedures of 5 C.F.R. § 315.805. See id.; 5 C.F.R.
§ 315.806(a)-(c).
¶9 On review, the appellant does not challenge the administrative judge’s
determinations that: (1) he did not allege that his termination was based on
partisan political reasons or marital status discrimination; and (2) he did not
allege that he was terminated for pre-appointment reasons. ID at 4. Rather, the
appellant reiterates the arguments on the merits of his probationary termination.
PFR File, Tab 1 at 3. His arguments on the merits are irrelevant to the
jurisdictional issues, see, e.g., Sapla v. Department of the Navy, 118 M.S.P.R.
551, ¶ 7 (2012), and we discern no reason to disturb the administrative judge’s
determination that the appeal is not within the Board’s jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
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717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
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FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.