The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ILLYA ERWIN, DOCKET NUMBER
Appellant, SF-315H-14-0321-I-1
v.
DEPARTMENT OF THE ARMY, DATE: August 20, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles H. Brower, Esquire, and Michael Healy, Esquire, Honolulu,
Hawaii, for the appellant.
Geovanny Rojas and Harold G. Murray, Schofield Barracks, Hawaii, 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 probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous findings of material fact; the initial decision is based on an 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).
¶2 Effective February 11, 2013, the appellant received a career-conditional
appointment to the competitive service position of Nurse, GS-0610-11, with
duties in Honolulu, Hawaii. Initial Appeal File (IAF), Tab 1 at 11. There is no
dispute that his appointment was subject to completion of a 1-year probationary
period. Id. The agency terminated the appellant effective February 6, 2014, for
lack of candor. Id. at 9.
¶3 The appellant timely filed a Board appeal, alleging that his probationary
period had ended by the time of his termination because more than 1 year had
passed since the date that he signed the appointment agreement on January 17,
2013. Id. at 6. The appellant further alleged that he was terminated because of
his lack of military status, age, sex, and race, and in reprisal for whistleblowing.
Id. He further alleged that the agency committed procedural error by failing to
provide him with adequate notice of his termination and that the decision letter
contained false statements of facts. Id. The appellant also requested a hearing.
Id. at 3.
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¶4 Because less than a calendar year had elapsed between the appellant’s
effective hiring date and date of termination, the administrative judge ordered
him to file evidence and argument as to whether Board jurisdiction existed over
his appeal and apprised him of his burdens to meet this standard. IAF, Tab 2.
Rather than respond directly to the order, the appellant informed the
administrative judge that he had filed a whistleblower reprisal claim with the
Office of Special Counsel (OSC) and an initial complaint “with the EEO.” IAF,
Tab 5. The agency then moved to dismiss, arguing that the appellant failed to
meet his burden to establish jurisdiction and that the agency provided the
appellant with all of the notice entitled to a probationary employee. IAF, Tab 6 at
7-8. In his supplemental responses, the appellant alleged that he was no longer a
probationary employee because the total number of hours worked when he was
terminated was equivalent to a calendar year’s worth of work and because he had
“filed a complaint” with both the “EEO” and “DOD/Office of Inspector General.”
IAF, Tab 7 at 4, Tab 8 at 3. The agency did not respond.
¶5 The administrative judge issued an initial decision without holding the
requested hearing. IAF, Tab 9, Initial Decision (ID) at 8. The administrative
judge found that the appellant failed to nonfrivolously allege that he qualified as
an employee under 5 U.S.C. § 7511(a)(1)(A)(i) or (ii). ID at 5-6. The
administrative judge further found that the appellant failed to make a
nonfrivolous allegation of jurisdiction under 5 C.F.R. §§ 315.805 and 315.806,
because he failed to assert that the lack of candor infraction was related to
pre-appointment conduct and because he did not allege discrimination based on
marital status or partisan political reasons. ID at 6. Finally, because the
appellant did not establish exhaustion of administrative remedies with OSC, the
administrative judge found that the Board lacked jurisdiction over his
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whistleblower claims as an individual right of action (IRA) appeal. ID at 6-8. 2
Because the appellant failed to raise an otherwise appealable action, the
administrative judge found that the Board lacked jurisdiction to hear his
allegations of unlawful discrimination, procedural errors, and prohibited
personnel practices. ID at 8.
¶6 In his petition for review, again, rather than disputing that his appointment
was subject to completion of a 1-year probationary period, the appellant reiterates
his allegation that he was no longer a probationer at the time of his termination
and that the agency failed to comply with the process required by 5 C.F.R.
§ 315.805, Petition for Review (PFR) File, Tab 1 at 4. The appellant further
alleges that the agency’s lack of candor finding is directly contradicted by the
Hawaii Unemployment Insurance Division’s finding that he was not disqualified
from state unemployment benefits because he was “not discharged for misconduct
connected to work.” 3 Id. at 5. The agency has filed a response, arguing in favor
of dismissal for lack of jurisdiction. PFR File, Tab 4 at 3. 4
2
The administrative judge notified the appellant that, should he exhaust before OSC,
the Board may have jurisdiction over a future IRA appeal. ID at 8. The appellant has
not challenged the administrative judge’s finding that the Board lacks IRA jurisdiction
over the present appeal.
3
On July 24, 2014, and August 3, 2014, respectively, the appellant submitted three
pleadings entitled “Supplement to PFR and MEM in opp of motion to deny PFR,”
“Supplement to PFR and MEM in opp of motion to deny PFR part 2,” and “Supplement
to PFR and MEM in opp of motion to deny PFR part 3.” We have not considered these
pleadings because they were filed after the record closed on review and not in
accordance with the Board’s procedures set forth at 5 C.F.R. § 1201.114.
Further, on August 11, 2014, the appellant filed a motion for leave to submit additional
pleadings in which he asserts that he received documents on July 31, 2014,
demonstrating that the Board has jurisdiction over his appeal based upon the agency’s
harmful procedural errors and due process violations. PFR File, Tab 17. Although this
evidence is arguably new, because the appellant has not demonstrated how these
documents would materially affect the outcome of this appeal, we DENY the
appellant’s motion.
4
The agency’s response is erroneously titled a “cross petition for review” because it
does not challenge the administrative judge’s ultimate disposition of this appeal.
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¶7 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. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant with a
career-conditional appointment has only a statutory right to appeal adverse
actions to the Board under 5 U.S.C. chapter 75 if he qualifies as an employee
under either prong of 5 U.S.C. § 7511(a)(1)(A). McCormick v. Department of the
Air Force, 307 F.3d 1339, 1342 (Fed. Cir. 2002). Under this section, an
individual appointed to a competitive service position is an employee with 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.” 5 U.S.C.
§ 7511(a)(1)(A)(i)-(ii); Dooley v. Department of Veterans Affairs, 112 M.S.P.R.
110, ¶ 6 (2009).
¶8 Regarding the appellant’s arguments concerning his probationary status, it
is well established that the Office of Personnel Management (OPM) and the
Board have determined that a full-time employee’s 1-year probationary period is
a calendar year, instead of the number of hours actually worked. See Rzucidlo v.
Department of the Army, 101 M.S.P.R. 616, ¶ 7 (2006) (finding that because the
appellant only worked in the position for about 11 months, he was a probationary
employee, even though he met his required 2,080 hours for the year).
Furthermore, contrary to the appellant’s argument, separation need not occur
before the last actual scheduled tour of duty prior to the anniversary date.
Separation must occur prior to the last possible date, the “completion of a tour of
duty on the day before the anniversary date of the employee’s appointment.”
5 C.F.R. § 315.804(b); see Santillan v. Department of the Air Force, 54 M.S.P.R.
21, 26-27 (1992). Moreover, the appellant’s affidavit, the Recruitment Incentive
Service Agreement, and the Standard Form 50—all documents the appellant
Therefore, it is proper to treat the agency’s submission as a response and not as a cross
petition. Ellis v. Department of the Navy, 76 M.S.P.R. 102, 104 n.1 (1997).
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either provided or signed—clearly indicate that the effective date of his
appointment was February 11, 2013. IAF, Tab 1 at 11, Tab 6 at 33-35. The
documents include no language that would lead the appellant to believe the
effective date would be the date of signing. Finally, because the appellant made
no allegation otherwise, the administrative judge correctly found that he failed to
nonfrivolously allege that he had prior qualifying federal civilian service. ID at
5-6. Therefore, we agree with the administrative judge that the appellant failed to
nonfrivolously allege that he was an employee under 5 U.S.C. § 7511(a)(1)(A)(i)
or (ii).
¶9 OPM regulations provide only limited appeal rights to probationary
employees. Probationary employees may appeal a termination for
post-appointment reasons to the Board only if the termination is based on partisan
political reasons or marital status; or appeal a termination for reasons arising
prior to the employee’s appointment if the termination was not effected in
accordance with 5 C.F.R. § 315.805. 5 C.F.R. § 315.806(b)-(c); see Merian v.
Department of the Navy, 107 M.S.P.R. 221, ¶ 4 (2007). As such, only
probationary employees terminated for pre-appointment reasons are entitled to the
process the appellant identified: advance written notice of the proposed
termination, reasonable time to answer and furnish supporting affidavits that the
agency shall consider in reaching its decision, and notice of the adverse decision
at the earliest practicable date. 5 C.F.R. § 315.805.
¶10 The appellant’s allegations of agency procedural error do not confer
jurisdiction on the Board in this matter because the appellant failed to allege any
facts that, if proven, could establish that he was terminated for pre-appointment
reasons; instead he merely inserted the text of 5 C.F.R. § 315.805 into his
petition. See PFR, Tab 1 at 4, Tab 2 at 5; see also Coleman v. Department of the
Army, 106 M.S.P.R. 436, ¶ 9 (2007) (determining that pro forma allegations are
insufficient to satisfy the nonfrivolous standard). Thus, we agree with the
administrative judge that the appellant failed to nonfrivolously allege that he was
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terminated for pre-appointment reasons. Furthermore, the appellant did not raise
any allegations of discrimination based on partisan political reasons or marital
status. As a result, there is no basis to disturb the administrative judge’s finding
that the appellant failed to nonfrivolously allege jurisdiction under 5 C.F.R.
§§ 315.805 and 315.806.
¶11 Similarly, the appellant’s arguments regarding the Hawaii unemployment
benefit decision, PFR File, Tab 1 at 5-6, relate to the merits of his termination
and are immaterial to the issue of Board jurisdiction, see Kellum v. Veterans
Administration, 2 M.S.P.R. 65, 67 (1980) (finding that the sufficiency and
propriety of the agency’s misconduct allegation against the appellant concerns
substantive issues that are immaterial to the appeal, unless the Board has
jurisdiction over the probationary termination). As this issue does not confer
jurisdiction on the Board, the administrative judge properly found that the
appellant failed to nonfrivolously allege jurisdiction.
¶12 Therefore, we DENY the appellant’s petition for review and AFFIRM the
administrative judge’s initial decision, which dismissed the appeal for lack of
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
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
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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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.