The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAREK M. EISA, DOCKET NUMBER
Appellant, PH-315H-14-0887-I-1
v.
SOCIAL SECURITY DATE: July 2, 2015
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tarek M. Eisa, York, Pennsylvania, pro se.
Dane Choe, Baltimore, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant timely filed a Board appeal of his August 16, 2014
termination from his GS-12 Information Technology Specialist position during
his probationary period. Initial Appeal File (IAF), Tab 1. In the acknowledgment
order, the administrative judge explained the appellant’s burden to establish
jurisdiction over his appeal by, among other ways, showing that he was
terminated for preappointment reasons and that the agency failed to afford him
the procedural protections set forth in 5 C.F.R. § 315.805. IAF, Tab 2 at 2-3; see
Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶¶ 13-14 (2005) (finding
jurisdiction over a probationer’s appeal of his termination for preappointment
reasons where the agency failed to meet the regulatory requirements of section
315.805); see also 5 C.F.R. §§ 315.806(c), 1201.56(a)(2)(i) (the appellant bears
the burden of establishing Board jurisdiction). The agency filed a motion to
dismiss on the day that the record closed on the jurisdictional issue. IAF, Tab 7;
see IAF, Tab 2 at 1, 4-5. The administrative judge dismissed the appeal for lack
of jurisdiction, finding that the appellant did not raise any issues concerning the
agency’s failure to follow the procedures prescribed in section 315.805. 2 IAF,
Tab 17, Initial Decision (ID) at 6.
¶3 In his petition for review, the appellant does not challenge the
administrative judge’s jurisdictional finding and instead argues the Board’s
failure to address the merits of his termination. Petition for Review (PFR) File,
Tab 1. In an appeal under 5 C.F.R. § 315.806(c), the merits of the agency’s
decision to terminate the probationer are not before the Board. Blount v.
Department of the Treasury, 109 M.S.P.R. 174, ¶ 6 (2008); Hope v. Department
of the Army, 108 M.S.P.R. 6, ¶ 7 (2008). As previously noted, the appellant did
not contend that the agency based his termination on either partisan political
reasons or marital status. Although the appellant did not expressly argue that the
2
The appellant did not allege that the agency based his termination on either partisan
political reasons or marital status. See 5 C.F.R. § 315.806(b).
3
agency failed to follow the procedures of section 315.805, the agency conceded
that it did not do so and the appellant was clearly terminated for preappointment
reasons. ID at 5. Thus, our inquiry turns to whether the administrative judge
erred by dismissing the appeal for lack of jurisdiction based on the appellant’s
failure to establish that the agency’s procedural errors constituted harmful error.
See Blount, 109 M.S.P.R. 174, ¶ 6; see also Hope, 108 M.S.P.R. 6, ¶ 7.
¶4 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Blount, 109 M.S.P.R. 174, ¶ 7.
The administrative judge’s order contained no notice of a jurisdictional
requirement relating to harmful error. The Board has found that an administrative
judge’s defective notice can be cured if the agency’s pleadings contain the notice
that was lacking in the acknowledgement order, e.g., Mitchell v. Department of
Commerce, 106 M.S.P.R. 648, ¶ 5 (2007), aff’d, 276 F. App’x 1007 (Fed. Cir.
2008), and, in this case, the agency discussed harmful error in its motion to
dismiss, see IAF, Tab 7. However, the agency filed its motion on the same day
that the record closed on the jurisdictional issue and the terms of the
acknowledgment order did not allow for the appellant to respond to it. IAF,
Tab 2 at 4-5; see ID at 2. Moreover, the issue of jurisdiction is always before the
Board and may be raised by any party or by the Board on its own motion at any
time during Board proceedings. Coradeschi v. Department of Homeland Security,
109 M.S.P.R. 591, ¶ 7 (2008), aff’d, 326 F. App’x 566 (Fed. Cir. 2009).
¶5 On the current record, we cannot determine whether the agency’s failure to
follow the procedures set forth in 5 C.F.R. § 315.805 constituted harmful error.
As described above, the administrative judge did not give the appellant proper
notice of his burden to establish harmful error and, as a result, the appellant did
not submit argument and evidence on the harmful procedural error issue, nor did
the administrative judge determine whether there were factual issues requiring an
evidentiary hearing for resolution. On remand, the appellant will bear the burden
4
of establishing that the agency’s failure to comply with section 315.805 resulted
in harmful error, in that it “is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error,” thus causing “substantial harm or prejudice” to his rights. See Harris,
99 M.S.P.R. 355, ¶¶ 14-15; see also 5 C.F.R. § 1201.56(c)(3).
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.