The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOWELL D. SHACKELFORD, DOCKET NUMBER
Appellant, AT-315H-14-0714-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 24, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Jason C. Odom, Anniston, Alabama, for the appellant.
Chester Harkins Long Hutchinson, Fort Knox, Kentucky, 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 his termination 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
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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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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 On December 16, 2013, the agency appointed the appellant under a
Veterans Recruitment Appointment (VRA) to the position of Recruiting
Operations Officer at Jacksonville State University, an excepted appointment to
a position otherwise in the competitive service, subject to the satisfactory
completion of a 2-year trial period. Initial Appeal File (IAF), Tab 6 at 8-9;
see 5 C.F.R. § 307.103. On February 28, 2014, the appellant’s supervisor
conducted a counseling meeting to address issues with the appellant’s
performance, including failure to complete assigned tasks. IAF, Tab 6 at 19-20.
The agency subsequently terminated the appellant less than 1 year into his trial
period on May 6, 2014. Id. at 12-14, 17. The appellant filed an appeal of his
termination with the Board, alleging that the agency action was taken in
retaliation for his filing an equal employment opportunity complaint and for his
U.S. Army Reserve service in violation of the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA). IAF, Tab 1 at 1-2, 10-12.
The administrative judge docketed the termination as the present appeal, IAF,
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Tab 2, and the alleged USERRA violation as a separate appeal, MSPB Docket
No. AT-4324-14-0777-I-1.
¶3 The administrative judge notified the appellant that the Board may lack
jurisdiction over his termination and informed him how to establish that he had
appeal rights under 5 U.S.C. chapter 75 or regulatory appeal rights as a VRA
appointee as set forth at 5 C.F.R. §§ 307.105, 315.806. IAF, Tab 3. The
administrative judge ordered the appellant to file evidence and argument that the
Board has jurisdiction over the agency’s action against him. Id. at 4. The
appellant responded that he should not be considered a “probationary employee”
because he had previously worked in Army recruiting at the university through
government contractors. IAF, Tab 4 at 2-3. Alternatively, the appellant argued
that the Board has jurisdiction to hear his appeal under 5 C.F.R. § 315.806(c)
because the performance counseling memorandum mentioned employment
matters that occurred prior to his appointment and the agency failed to follow the
procedures required under 5 C.F.R. § 315.805. Id. at 3. The agency filed a
motion to dismiss the appeal, arguing that the appellant had not made a
nonfrivolous allegation of jurisdiction. IAF, Tab 6 at 4.
¶4 At the beginning of the hearing in the present appeal, the appellant
withdrew his argument that his prior position as a contractor exempted him from
serving a trial period, and he acknowledged that he was terminated during his
trial period. See IAF, Tab 14 (Hearing CD). In the initial decision, the
administrative judge granted the agency’s motion and dismissed the appeal for
lack of jurisdiction. IAF, Tab 16, Initial Decision (ID) at 4. The administrative
judge found that the appellant does not meet the definition of employee
under 5 U.S.C. § 7511 and thus is not an individual with Board appeal rights
under 5 U.S.C. chapter 75. ID at 4-5. The administrative judge also found that
the appellant was not terminated on the basis of partisan politics or marital
status, or for pre-appointment reasons within the meaning of 5 C.F.R. § 315.805,
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and thus he failed to establish jurisdiction under 5 C.F.R. §§ 307.105, 315.806.
ID at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant makes no allegation of error in the administrative
judge’s analysis and findings regarding the Board’s lack of jurisdiction over his
termination appeal. The appellant submitted one petition for review of the
separate initial decisions in his termination appeal and USERRA appeal. See
Petition for Review (PFR) File, Tab 1. The petition for review does not address
the jurisdictional issue in the termination appeal, but rather makes arguments
solely regarding his USERRA violation allegations and the administrative
judge’s initial decision in that appeal. Id. at 2-4.
¶6 The administrative judge correctly found that the appellant failed to show
that the Board has jurisdiction over the present appeal. 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). The appellant bears the burden of proof
of establishing Board jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(a)(2)(i). To establish Board jurisdiction under 5 U.S.C. chapter 75, an
individual must, among other things, show that he satisfied one of the definitions
of “employee” in 5 U.S.C. § 7511(a)(1). See 5 U.S.C. § 7513(d). The
administrative judge reviewed the appellant’s employment under 5 U.S.C.
§§ 7511(a)(1)(B)-(C) and properly found that the appellant did not meet the
definition of “employee” under either subsection because he had approximately
6 months of federal civilian service when he was terminated during his trial
period. ID at 5. An individual serving under a VRA whose employment is
terminated within 1 year after the date of his appointment has the same appeal
rights as a career or career-conditional employee has during the first year of
employment. See 5 C.F.R. § 307.105. Consequently, the appellant could bring
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an appeal of his termination in limited circumstances set forth at 5 C.F.R.
§ 315.806. Id. The Board has jurisdiction over termination appeals
under 5 C.F.R. § 315.806 in situations in which the agency’s action was
improperly based on partisan political reasons or marital status, or taken on
improper procedures when the employee was terminated for reasons based in
whole or in part on conditions arising before his appointment. The
administrative judge found that the appellant made no allegation that his
termination was based on partisan political reasons or marital status, and the
appellant has made no such argument on review. ID at 6; see PFR File, Tab 1 at
2-4.
¶7 On review, the appellant does not contest the administrative judge’s finding
that he was not removed for pre-appointment reasons and thus had no Board
appeal rights under 5 C.F.R. § 315.806 on the ground that his termination was
not effected in accordance with the procedural requirements of 5 C.F.R.
§ 315.805. See ID at 6-9; PFR File, Tab 1 at 2-4. The administrative judge
considered the appellant’s arguments concerning performance documents written
by his supervisor reflecting pre-appointment incidents, but found that the record
did not support such a finding. ID at 7. We see no reason to reweigh the
evidence or substitute our assessment of the record evidence for that of the
administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge’s findings when the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987) (same). The administrative
judge also thoroughly discussed the hearing testimony of the appellant’s
supervisor and found it compatible with the written record. See ID at 7-8; see
also Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the
Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observation of
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the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so).
Thus, we find no cause for overturning the administrative judge’s conclusion that
the record evidence does not support the appellant’s allegation that the agency
considered his performance as a private contractor prior to his conversion to
federal employment in deciding to terminate him and that the appellant failed to
establish Board jurisdiction by a preponderance of the evidence. See ID at 9.
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
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
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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.