Jon Eakman v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JON EAKMAN, DOCKET NUMBER

Appellant, DA-315H-15-0226-I-1

v.

DEPARTMENT OF HOMELAND DATE: September 14, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jon Eakman, Houston, Texas, pro se.

Eric J. Drootman, Edinburg, Texas, 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative 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, 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 Effective June 2, 2014, the agency appointed the appellant to the position of

Customs and Border Protection Officer in the competitive service. Initial Appeal

File (IAF), Tab 4 at 23. The career-conditional appointment was subject to the

completion of a 1-year probationary period. Id. On January 8, 2015, prior to the

completion of the 1-year period, the agency terminated the appellant for failing to

follow leave-requesting procedures. Id. at 13-16.

¶3 The appellant filed an appeal of his termination with the Board and

requested a hearing. IAF, Tab 1. He claimed that the agency committed harmful

procedural error and the prohibited personnel practice of discrimination. Id. at 4.

In an acknowledgment order, the administrative judge informed the appellant that

the Board may not have jurisdiction over his appeal and apprised him of the

regulatory right to appeal available to probationers and the requirements for

meeting the definition of an “employee” for purposes of 5 U.S.C. chapter 75

appeal rights. IAF, Tab 2 at 2-4. The agency moved to dismiss the appeal for

lack of jurisdiction. IAF, Tab 4 at 5, 10. In response, the appellant claimed that

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the agency terminated him for preappointment reasons without the procedures

required under 5 C.F.R. § 315.805 and submitted a letter dated January 6, 2015,

documenting his acceptance of the agency’s offer of a temporary light duty

position. IAF, Tabs 6-7.

¶4 Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 19, Initial

Decision (ID) at 1, 7. She found that the appellant did not meet the statutory

definition of an “employee” with Board appeal rights under 5 U.S.C.

§ 7511(a)(1)(A). ID at 4-5. She also found that the appellant failed to make a

nonfrivolous allegation that he had a regulatory right to appeal under 5 C.F.R.

§ 315.806(b)-(c). ID at 5-6. Finally, she stated that the Board could not address

his claims of harmful procedural error and discrimination absent an otherwise

appealable action. ID at 6-7.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. 2 The agency has filed a response. PFR File, Tab 2. The appellant

has filed a reply to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 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

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board

jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things,

show that he satisfies one of the definitions of “employee” in 5 U.S.C.

§ 7511(a)(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).

For an individual in the competitive service, this means that he either must not be

2

According to 5 C.F.R. § 1201.14(m)(1), all pleadings filed via the Board’s e-Appeal

Online System are time-stamped with Eastern Time, but the timeliness of a pleading is

determined based on the time zone from which the pleading was submitted. Here, the

appellant submitted his petition for review from the Central Time Zone; therefore, his

petition for review is timely. PFR File, Tab 1 at 4.

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serving a probationary or trial period under an initial appointment, or have

completed 1 year of current continuous service under other than a temporary

appointment limited to 1 year or less. Id.; see 5 U.S.C. § 7511(a)(1)(A).

Individuals in the competitive service who do not satisfy either definition may

nevertheless have the right to appeal a termination to the Board under 5 C.F.R.

§ 315.806. Walker, 119 M.S.P.R. 391, ¶ 5. However, the Board’s jurisdiction

over termination appeals under that section is limited to the following situations:

(1) the employee was discriminated against based on his marital status; (2) the

agency action was based on partisan political reasons; or (3) the agency action

was based (in whole or part) on preappointment reasons and the agency did not

follow the procedures of 5 C.F.R. § 315.805. Walker, 119 M.S.P.R. 391, ¶ 5.

There is no statutory requirement that the Board hold a hearing on the threshold

issue of jurisdiction. Id., ¶ 6. Nevertheless, if an appellant makes a nonfrivolous

allegation of jurisdiction, and the Board cannot make a determination based on

the documentary evidence, the Board should hold an evidentiary hearing to

resolve the jurisdictional question. Id.

¶7 Here, the appellant does not allege that he qualifies as an “employee” under

5 U.S.C. § 7511(a)(1)(A) or that the agency terminated him for partisan political

reasons or due to marital status discrimination. In his petition for review, he

claims that he has a regulatory right to appeal because the agency terminated him

based on preappointment reasons and did not follow the procedures required

under 5 C.F.R. § 315.805. PFR File, Tabs 1, 4; see 5 C.F.R. § 315.806(c).

Specifically, he asserts that, because his career-conditional appointment was

subject to the completion of a 1-year probationary period, he had not been

“officially appointed in the position” when he was terminated, and thus the

agency terminated him for preappointment reasons. PFR File, Tab 1 at 5. He

cites to his Standard Form 50 to support his argument. Id.; see IAF, Tab 4 at 23.

¶8 We find the appellant’s argument is not persuasive. Our reviewing court

has upheld the Board’s interpretation that “appointment” under 5 C.F.R.

5

§ 315.805 refers to an employee’s initial appointment to a competitive-service

position subject to a probationary period. See, e.g., Younies v. Merit Systems

Protection Board, 662 F.3d 1215, 1219 (Fed. Cir. 2011) (holding that the Board

properly determined that the appellant was not entitled to the procedural

protections under 5 C.F.R. § 315.805 because he was not terminated based in

whole or in part on a preprobationary condition). Further, the appellant may be

conflating the requirement of a 1-year probationary period with his

career-conditional appointment. To clarify, his continued employment was

subject to the completion of a 1-year probationary period. See 5 C.F.R.

§ 315.803(a). In contrast, under the career-conditional appointment, his

conversion to a career appointment was conditional upon the completion of

3 years of creditable service. See 5 C.F.R. §§ 315.201-315.202.

¶9 For these reasons, we find that the administrative judge properly interpreted

5 C.F.R. § 315.805 and the appellant has failed to make a nonfrivolous allegation

that the regulation applies to him. We therefore affirm the initial decision

dismissing the probationary termination appeal for lack of 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

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

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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

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.