The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUINCY RAY HAYNES, DOCKET NUMBER
Appellant, DC-315H-15-0871-I-1
v.
DEPARTMENT OF DEFENSE, DATE: November 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Quincy Ray Haynes, Norfolk, Virginia, pro se.
Karen L. Saxton, New Cumberland, 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 for lack of jurisdiction his appeal of his termination during his
probationary period. 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 regulation or the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED by
this Final Order, we AFFIRM the initial decision. Specifically, we MODIFY the
initial decision to further elaborate on the evidence and argument that the
appellant submitted in support of his case and to explain why this evidence and
argument is insufficient to constitute a nonfrivolous allegation of jurisdiction.
¶2 The agency terminated the appellant from his WG-5 Distribution Process
Worker position for alleged unsatisfactory performance. Initial Appeal File
(IAF), Tab 1 at 8-10. After he appealed his termination to the Board, the
administrative judge issued an order that informed him that it appeared that his
appeal was not within the Board’s jurisdiction. She notified him that he had the
burden of proving that the Board had jurisdiction over his appeal, provided him
with notice of what he had to prove to establish jurisdiction, and ordered him to
submit evidence and argument establishing the Board’s jurisdiction over his
appeal. IAF, Tab 2. She further informed the appellant that he only would be
entitled to a hearing if he made a nonfrivolous allegation of fact that, if proven,
could establish jurisdiction over his appeal. Id. at 3. When the appellant did not
respond, the administrative judge issued a second order and again directed the
appellant to furnish evidence and argument establishing Board jurisdiction over
his appeal. IAF, Tab 3. The appellant did not respond to the second order.
Thereafter, the administrative judge dismissed the appeal for lack of jurisdiction,
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finding that the appellant failed to respond to her orders and that there was no
evidence in the record establishing that the appeal was within the Board’s
jurisdiction. IAF, Tab 6, Initial Decision.
¶3 Because the appellant was terminated from a competitive service position,
he must satisfy the definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)
to have Board appeal rights under 5 U.S.C. chapter 75. Henderson v. Department
of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To qualify as an “employee,” the
appellant must show that he is not serving a probationary period or has completed
1 year of current continuous service under other than a temporary appointment
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). The appellant here
served only 2 months of his 1-year probationary period. The service computation
date on the Standard Form 50 documenting the appellant’s termination indicates
that the appellant has, at most, approximately 9 months of total Federal service.
IAF, Tab 1 at 8. Therefore, the appellant does not meet the definition of
“employee” at 5 U.S.C. § 7511(a)(1)(A), and he does not have the right to appeal
his termination to the Board under 5 U.S.C. §§ 7513(d) and 7701.
¶4 A probationary employee in the competitive service who, like the appellant,
was terminated for post-appointment reasons, can bring an appeal of his
termination to the Board, but only if he was discriminated against because of his
marital status or partisan political affiliation. Henderson, 114 M.S.P.R. 149, ¶ 9;
Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 8 (2007). The appellant
did not claim in his appeal, and does not claim in his petition for review, that the
termination was based on marital status or partisan political discrimination. The
administrative judge informed the appellant that he must make such an allegation
in order to establish the Board’s jurisdiction over the appeal, but the appellant
did not respond to either of her orders. The appellant instead argues that the
allegations of unacceptable performance were unfounded and his termination
based on those allegedly unfounded reasons was improper. IAF, Tab 1 at 6;
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Petition for Review File, Tab 1 at 4. These arguments, however, relate to the
reasons underlying the termination and not the issue of Board jurisdiction, and
thus provide no basis to disturb the initial decision. See Rivera v. Department of
the Navy, 114 M.S.P.R. 52, ¶ 7 (2010) (finding that, in an appeal of a termination
during a probationary period, the merits of the agency’s decision are not before
the Board).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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
5
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 U.S. 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.