The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN A. WILLIAMS, DOCKET NUMBER
Appellant, DC-3443-14-0498-I-1
v.
FEDERAL RESERVE SYSTEM, DATE: October 20, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Kevin A. Williams, Suitland, Maryland, pro se.
Miriam Jacks Achtenberg, Esquire, and Kate Parkhurst, Esquire,
Washington, D.C., 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 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 erroneous interpretation of statute or
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 In his appeal, the appellant identified himself as a term employee and
complained that the agency failed to give him notice that it would not renew his
contract. Initial Appeal File (IAF), Tab 1. He included a copy of a Release and
Transition Agreement that indicates, in pertinent part, that his excepted service
term appointment with the Consumer Financial Protection Bureau ended on
February 23, 2014. Id. The administrative judge gave the appellant specific
notice of his burden to establish jurisdiction over his appeal, IAF, Tab 3, but the
appellant did not respond. The agency moved to dismiss the appeal for lack of
jurisdiction, IAF, Tab 7, and the administrative judge did so, on the written
record without holding a hearing, IAF, Tab 9.
¶3 The appellant subsequently faxed a letter to the Board in which he indicated
that he “would like to withdraw the appeal with the right to refile it at a later date
if needed.” Petition for Review (PFR) File, Tab 1. Later that same day, the
appellant faxed another letter in which he cited case law that he asserts provides a
basis for Board jurisdiction over his appeal. Id. The agency responded in
opposition. PFR File, Tab 5.
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¶4 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant
offers no explanation for why he failed to assert these arguments in his appeal
below, we have not considered them. In any event, our precedent is clear that
when the appellant’s appointment expired, his employment with the agency ended
automatically, and was not an adverse action appealable to the Board. E.g.,
Murdock-Doughty v. Department of the Air Force, 74 M.S.P.R. 244, 252 (1997);
see also Berger v. Department of Commerce, 3 M.S.P.R. 198, 199-200 (1980) (the
separation of a term appointee at the expiration of the term specified at the time
of appointment is not an appealable adverse action); 5 C.F.R. § 316.303.
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 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
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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.