The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTO DELGADO, DOCKET NUMBER
Appellant, PH-0752-15-0272-I-1
v.
DEPARTMENT OF VETERANS DATE: September 22, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Roberto Delgado, Philadelphia, Pennsylvania, pro se.
Tierney Stanley, Philadelphia, Pennsylvania, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
¶2 The agency terminated the appellant from the excepted service position of
Biomedical Equipment Support Specialist during his trial period for inadequate
performance. Initial Appeal File (IAF), Tab 6 at 48. The appellant appealed the
agency’s action. IAF, Tab 1. The administrative judge found that the appellant
was not an employee with Board appeal rights because he was serving a trial
period in the excepted service. IAF, Tab 8, Initial Decision (ID).
¶3 In his petition for review, the appellant asserts that he was notified of his
excepted appointment on March 5, 2014, and that he had therefore completed his
1-year trial period by the date of his termination, March 20, 2015. He also
reiterates the assertion that he was terminated in retaliation for his
whistleblowing, disclosing gross mismanagement, gross expenditures, and abuse
of power. Petition for Review File, Tab 1.
¶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 Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Only an “employee,” as defined under
5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an adverse
action such as a removal. Barrand v. Department of Veterans Affairs,
112 M.S.P.R. 210, ¶ 13, review dismissed, 370 F. App'x 85 (Fed. Cir. 2009); see
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5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d). A nonpreference-eligible individual in
the excepted service is an employee if: (1) he is not serving a probationary or
trial period under an initial appointment pending conversion to the competitive
service; or (2) he 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 Here it is undisputed that the appellant was not preference eligible.
IAF, Tab 1. Further, the record reflects that he was serving a trial period, and
that he had served in his position for less than 1 year. Although the appellant
may have accepted the position by March 5, 2014, he was appointed to the
position effective April 6, 2014. IAF, Tab 6 at 12. He was terminated less than 1
year later, effective March 20, 2015. Id. at 48. Thus, the administrative judge
properly found that the appellant was not an employee and the Board does not
have jurisdiction over his appeal. ID at 4; see Barrand, 112 M.S.P.R. 210, ¶ 13.
¶6 Even though the Board lacks jurisdiction to review the termination as an
otherwise appealable action, the appellant may request review of such an agency
action in an individual right of action (IRA) appeal under the Whistleblower
Protection Act. See Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327,
¶ 5 (2007); 5 U.S.C. § 1221. The Board has jurisdiction over an IRA appeal if the
appellant has exhausted his administrative remedies before the Office of Special
Counsel (OSC) and makes nonfrivolous allegations that: (1) he engaged in
whistleblowing activity by making a protected disclosure, and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001).
¶7 Here, the administrative judge informed the appellant of his burden to prove
jurisdiction over his allegation that he was removed in retaliation for
whistleblowing as an IRA appeal. IAF, Tab 3. The appellant has failed to meet
his jurisdictional burden because he has not shown that he filed a complaint with
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OSC, and therefore has not shown that he exhausted his administrative remedies.
See Garrison v. Department of Defense, 101 M.S.P.R. 229, ¶ 6 (2006). Thus, the
administrative judge properly found that this appeal is not an IRA appeal within
the Board’s jurisdiction. ID at 4.
¶8 Accordingly, we affirm the initial decision dismissing the appeal for lack of
jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
2
The administrative judge afforded the appellant mixed-case review rights. ID at 8-10.
However, in the absence of Board jurisdiction, this is not a mixed-case appeal. We
have provided the appellant the proper review rights here. See, e.g., Calixto v.
Department of Defense, 120 M.S.P.R. 557 (2014).
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review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States Court of Appeals for the Federal
Circuit 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. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the 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.
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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.