The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUNIEL MICHAEL ROSS, DOCKET NUMBER
Appellant, PH-315H-15-0065-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 13, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Suniel Michael Ross, Warwick, Rhode Island, pro se.
Heather A. Southwell, Esquire, and Shira L. Krieger, Esquire, New York,
New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his probationary 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
¶2 The appellant received a career-conditional appointment to the position of
Clerk, GS-5, with the agency’s Internal Revenue Service (IRS), effective
December 30, 2013. Initial Appeal File (IAF), Tab 7 at 6. The appointment was
subject to completion of a 1-year probationary period beginning that same date.
Id. On October 14, 2014, the appellant was notified that he was to be terminated
during his probationary period, effective October 17, 2014, because, on three
occasions, he attempted unauthorized access to the account of a covered taxpayer,
for reasons not related to his assigned duties, in violation of IRS policy. Id., Tab
1 at 7-8. An investigation into the matter revealed that the taxpayer whose
account the appellant attempted to access was his ex-wife. Id., Tab 5 at 29. The
appellant was terminated on October 17, 2014. Id., Tab 7 at 9.
¶3 On appeal, the appellant argued that the manner in which the agency
conducted an investigation into his actions violated certain provisions of the
collective bargaining agreement. Id., Tab 1 at 5. The administrative judge issued
an order in which he advised the appellant of the limited ways in which he could
establish the Board’s jurisdiction over his appeal, specifically, by raising a
nonfrivolous allegation that he was terminated based on partisan political reasons
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or marital status or that the termination was based in whole or in part of
preappointment reasons, or by showing that he had, in fact, completed his
probationary period or was otherwise an “employee” with appeal rights to the
Board under 5 U.S.C. chapter 75, IAF, Tab 2. The administrative judge ordered
the appellant to respond within 15 calendar days of the date of the order, id., but
he failed to do so.
¶4 In his initial decision, the administrative judge found that the appellant had
failed to show that he had completed his probationary period or that he was an
“employee” under 5 U.S.C. § 7511 with appeal rights to the Board, and that he
had not nonfrivolously alleged that he was terminated for pre-appointment
reasons or because of partisan political reasons or marital status. IAF, Tab 8,
Initial Decision (ID) at 3-4. Accordingly, the administrative judge dismissed the
appeal for lack of jurisdiction. ID at 1, 4.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
¶6 To qualify as an “employee” in the competitive service with adverse action
appeal rights to the Board, an individual must show that he is not serving a
probationary period or has completed 1 year of current continuous service under
an appointment other than a temporary one limited to 1 year or less. 5 U.S.C.
§ 7511(a)(1)(A); McCormick v. Department of the Air Force, 307 F.3d 1339,
1341-43 (Fed. Cir. 2002); Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 5
(2008). A probationary employee in the competitive service can only bring an
appeal of his termination to the Board under very limited circumstances: (1) the
employee was discriminated against on account of his marital status or based on
partisan political affiliation; or (2) the agency action was based, in whole or in
part, on issues that arose preappointment and the required procedures were not
followed. Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5
(2008); 5 C.F.R. §§ 315.805, 315.806.
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¶7 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;
(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. Hurston v. Department of
the Army, 113 M.S.P.R. 34, ¶ 9 (2010); 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 1 year of current continuous service without a break in federal
civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9.
¶8 The administrative judge found that none of these possible means of
establishing Board jurisdiction is present in this case, and the appellant has not
shown error in that finding. See Henderson v. Department of the
Treasury, 114 M.S.P.R. 149, ¶¶ 9-10 (2010). The appellant argues that he
received no prior warning of his infractions, that he did not, in fact, access any
information regarding his ex-wife and lacked any such intent, that he put forth a
good work effort and performed with dependability and integrity, and that others
did worse but are still employed by the agency. PFR File, Tab 1 at 4-5. Such
claims and whether they support the agency’s action do not establish Board
jurisdiction. Yakupzack v. Department of Agriculture, 10 M.S.P.R. 180, 182
(1982) (the Board’s review of probationary terminations does not include a
review of the merits of the termination action).
¶9 Finally, the appellant, who appears pro se before the Board, argues that, due
to his “current situation” he has no legal representation and lacks legal guidance.
PFR File, Tab 1 at 4. An appellant has the right to be represented by an attorney
or other representative. 5 U.S.C. § 7701(a)(2). However, no statute or regulation
requires the Board to appoint a representative for an appellant, and it is the
appellant’s obligation to secure his own representative. Brum v. Department of
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Veterans Affairs, 109 M.S.P.R. 129, ¶ 5 (2008). The appellant chose to proceed
pro se and must accept the consequences of that decision. Id.
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 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
information regarding pro bono representation for Merit Systems Protection
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Board appellants before the Federal Circuit. 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.