Bakarr Bangura v. Social Security Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BAKARR BANGURA, DOCKET NUMBER

Appellant, PH-0752-15-0203-I-1

v.

SOCIAL SECURITY DATE: July 8, 2015

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Bakarr Bangura, Windsor Mill, Maryland, pro se.

Ellen Rothschild, Baltimore, Maryland, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Effective May 18, 2014, the agency appointed the appellant to an excepted

service position as a Legal Administrative Specialist with its Office of Central

Operations. Initial Appeal File (IAF), Tab 1; see IAF, Tab 6 at 32-33. Before his

appointment, the agency informed the appellant that he must initially serve a

2-year trial period during which he may be separated at any time for poor

performance or misconduct. IAF, Tab 1 at 17; see IAF, Tab 6 at 32. On

January 9, 2015, the agency terminated the appellant for unacceptable

performance. IAF, Tab 1 at 28-29.

¶3 The appellant filed a timely appeal. IAF, Tab 1. The administrative judge

gave the appellant comprehensive notice of the elements and burdens he must

meet to be entitled to a jurisdictional hearing on his claim. IAF, Tabs 2, 4. After

considering the parties’ subsequent submissions, the administrative judge

dismissed the appeal for lack of jurisdiction, finding that the appellant failed to

make the requisite nonfrivolous allegation that he was an employee with appeal

rights to the Board. IAF, Tab 7, Initial Decision.

¶4 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

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Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Only an “employee” as

defined under 5 U.S.C. chapter 75, subchapter II, may appeal to the Board from

an adverse action such as a removal. E.g., Ramirez-Evans v. Department of

Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010); see 5 U.S.C. §§ 7511(a)(1),

7512(1), 7513(d). A nonpreference-eligible individual, like the appellant, in the

excepted service is an “employee” within the meaning of 5 U.S.C. § 7511 only if

he: (1) is not serving a probationary or trial period under an initial appointment

pending conversion to the competitive service; or (2) has completed 2 years of

current continuous service in the same or similar positions in an executive agency

under other than a temporary appointment limited to 2 years or less. 5 U.S.C.

§ 7511(a)(1)(C)(i)-(ii).

¶5 Because the appellant cannot meet this test, we find that the Board lacks

jurisdiction over his appeal. Moreover, because the agency terminated the

appellant for post-appointment reasons, he is not entitled to the procedures set

forth at 5 C.F.R. § 315.805. See 5 C.F.R. § 315.806(c). Lastly, in the absence of

an otherwise appealable action, the Board lacks jurisdiction over the appellant’s

disability discrimination claim. See Wren v. Department of the Army, 2 M.S.P.R.

1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) (prohibited personnel

practices under 5 U.S.C. § 2302(b) are not an independent source of Board

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

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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 an appeal to the

United States Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services

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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.