The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD ARNALDO HERNANDEZ, DOCKET NUMBER
Appellant, AT-3443-15-0764-I-1
v.
DEPARTMENT OF JUSTICE, DATE: March 1, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ryan C. Nerney, Esquire, Encinitas, California, for the appellant.
Chad Y. Tang, Esquire, Washington, D.C., 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 On July 24, 2015, the appellant filed an appeal contesting the agency’s
decision to terminate his employment as a Special Agent with the Federal Bureau
of Investigation (FBI). Initial Appeal File, Tab 1. 2 The administrative judge
dismissed the appeal for lack of jurisdiction, on the ground that the appellant had
failed to show that he was a preference eligible with at least 1 year of current
continuous service. IAF, Tab 15, Initial Decision. This petition for review
followed. Petition for Review (PFR) File, Tab 1.
¶3 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). Under 5 U.S.C. § 7511(8), the
only FBI employees with appeal rights to the Board are those who meet the
requirements of 5 U.S.C. § 7511(a)(1)(B). Van Lancker v. Department of Justice,
119 M.S.P.R. 514, ¶ 4 (2013). Hence, for the Board to have jurisdiction over this
appeal, the appellant must be a preference eligible in the excepted service who
has completed 1 year of current continuous service in the same or similar
2
In his initial filing, the appellant asserted that the agency discriminated against him on
the basis of his past military service. Id. That claim was separately docketed and
processed as an appeal under the Uniformed Services Employment and Reemployment
Rights Act. Hernandez v. Department of Justice, MSPB Docket No. AT-15-4324-0765-
I-1.
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positions in an Executive agency or in the U.S. Postal Service or Postal Rate
Commission. See 5 U.S.C. § 7511(a)(1)(B).
¶4 The record reflects that the appellant has preference-eligible status, and was
hired into the excepted service on August 10, 2014. IAF, Tabs 1, 9. It is
undisputed that the agency terminated his employment on March 19, 2015,
approximately 7 months after he began his employment with the agency. IAF,
Tab 1. The appellant argued below that his prior service in the U.S. Army could
be tacked on to his civilian service with the agency to satisfy the 1-year current
continuous service requirement. IAF, Tab 14 at 5. However, as the
administrative judge noted below, military service cannot be tacked on to civilian
service for purposes of meeting the 1-year current service requirement of
5 U.S.C. § 7511(a)(1)(B). See Bell v. Department of Homeland Security,
95 M.S.P.R. 580, ¶¶ 15-18 (2004).
¶5 On review, the appellant argues that Bell is not decisive, because in addition
to his service with the U.S. Army, he also served 9 years as a Major in the U.S.
Air Force Auxiliary Component, Civil Air Patrol. PFR File, Tab 1 at 6-7. He
argues that his volunteer service in the Civil Air Patrol counts as civilian service,
and thus may tacked on to his service with the agency for purposes of meeting the
1-year current continuous service requirement. Id. However, assuming arguendo
that volunteer work with the Civil Air Patrol might count as civilian service, the
appellant has not provided any evidence to establish that his service with the
Civil Air Patrol immediately preceded his employment with the agency, or that it
included the same or similar duties as his FBI Special Agent position. Hence, the
appellant still has failed to show that he satisfies the requirements of 5 U.S.C.
§ 7701(a)(1)(B).
¶6 The appellant also argues that the Board should assert jurisdiction based on
his claim that the agency violated his due process rights under the Fifth
Amendment. PFR File, Tab 1 at 7-8. However, it is well established that the
Board has no jurisdiction to review constitutional claims that are not coupled with
4
an independently appealable action. Smith v. Department of Defense,
106 M.S.P.R. 228, ¶ 13 (2007) (citing Manning v. Merit Systems Protection
Board, 742 F.2d 1424, 1428-29 (Fed. Cir. 1984)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 U.S. 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 U.S. 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 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
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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.