Derek T. Williams v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEREK T. WILLIAMS, DOCKET NUMBER

Appellant, DA-0752-15-0530-M-1

v.

UNITED STATES POSTAL SERVICE, DATE: January 4, 2017

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paul M. Schoenhard, Esquire, Washington, D.C., for the appellant.

Charles E. Booth, Esquire, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 This appeal is before the Board after the U.S. Court of Appeals for the

Federal Circuit granted the Board’s request to remand the case to the Board for

further consideration. Except as expressly MODIFIED by this Final Order to

supplement the administrative judge’s jurisdictional analysis, we AFFIRM the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

initial decision, issued in MSPB Docket No. DA-0752-15-0530-I-1, dismissing

the appeal for lack of jurisdiction.

BACKGROUND

¶2 Effective June 15, 2013, the agency appointed the preference-eligible

appellant to a Rural Carrier Associate (RCA) position. Williams v. U.S. Postal

Service, MSPB Docket No. DA-0752-15-0530-I-1, Initial Appeal File (IAF),

Tab 1 at 1, Tab 11 at 4-6, Tab 12 at 20, Tab 17 at 4. More than 18 months later,

while he was employed as an RCA, the appellant applied and was selected for a

temporary, time-limited appointment as a City Carrier Assistant (CCA) with the

agency. Williams v. U.S. Postal Service, MSPB Docket No. DA-0752-15-0530-

M-1, Remand File (RF), Tab 5 at 78-87, 92. Pursuant to applicable collective

bargaining agreements, a 5-day break in service is required when an individual

moves from an RCA position to a temporary, time‑limited CCA position with the

agency. 2 Id. at 43, 73. Accordingly, approximately 22 months after he was

appointed to the RCA position, on April 2, 2015, the appellant was separated

from that position due to the required break in service. 3 IAF, Tab 12 at 21.

Effective April 8, 2015, following a 5-day break in service, the agency appointed

the appellant to the CCA position. 4 Id. at 22.

¶3 Approximately 3 months after the appellant was appointed to the CCA

position, the agency terminated his employment after he was involved in a motor

vehicle accident while on duty. Id. at 23-24. The appellant filed a timely Board

2

We note that the appellant does not contend that a collectively bargained provision

requiring a break in service is unlawful or otherwise unenforceable, and we do not

reach that issue here.

3

Although the appellant was separated from the RCA position effective April 2, 2015,

the notification of personnel action reflecting his separation was not processed until

April 16, 2015. IAF, Tab 12 at 21.

4

Although the appellant was appointed to the CCA position effective April 8, 2015, the

notification of personnel action reflecting his appointment was not processed until

April 16, 2015. IAF, Tab 12 at 22.

3

appeal challenging his termination. IAF, Tabs 1-2. Without holding the

appellant’s requested hearing, the administrative judge dismissed the appeal for

lack of jurisdiction. IAF, Tab 23, Initial Decision (ID); IAF, Tab 1 at 2. In

pertinent part, she found that the appellant failed to raise a nonfrivolous

allegation that he was a U.S. Postal Service employee with Board appeal rights

because he had a break in service of more than 1 day between the RCA and CCA

positions, and therefore, he had not completed 1 year of current continuous

service at the time that he was terminated, as required by 5 U.S.C.

§ 7511(a)(1)(B)(ii). 5 ID at 5-6.

¶4 The appellant filed a petition for review of the initial decision. Williams v.

U.S. Postal Service, MSPB Docket No. DA-0752-15-0530-I-1, Petition for

Review (PFR) File, Tab 1. In a February 9, 2016 Final Order, the Board denied

the appellant’s petition for review. Williams v. U.S. Postal Service, MSPB

Docket No. DA-0752-15-0530-I-1, Final Order (Feb. 9, 2016); PFR File, Tab 8.

¶5 The appellant appealed the Board’s decision to the Federal Circuit.

Williams v. Merit Systems Protection Board, MSPB Docket No. DA-0752-15-

0530-L-1, Litigation File (LF), Tab 5. Before the Federal Circuit, the appellant,

who was represented by counsel for the first time in the appeal, argued for the

first time that, despite the required break in service, he was nevertheless an

employee with Board appeal rights under the “continuing employment contract”

theory in Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363, 367-68 (1984).

LF, Tab 5 at 12-13, 25-47. Alternatively, the appellant argued that, because the

agency did not inform him that he would lose his appeal rights when he moved

from the RCA position to the CCA position, he retained his Board appeal rights

from the former position under the theory set forth in Exum v. Department of

Veterans Affairs, 62 M.S.P.R. 344 (1994). LF, Tab 5 at 47-54.

5

The administrative judge further found that, absent an otherwise appealable action, the

Board lacked jurisdiction over the appellant’s claims of prohibited personnel practices

and harmful error in effectuating his termination. ID at 2, 6.

4

¶6 The Board requested that the Federal Circuit remand the appeal to the Board

so that we could consider whether Roden was still good law, and if so, whether it

would alter the Board’s determination that it lacks jurisdiction over the appeal.

LF, Tab 6 at 1-5. Previously, the Federal Circuit granted a similar remand

request in Winns v. Merit Systems Protection Board, MSPB Docket No. SF-0752-

15-0165-L-2, another appeal in which an appellant alleged that the Board had

jurisdiction over the appeal under the theory in Roden. Winns v. Merit Systems

Protection Board, Fed. Cir. No. 2016-1206, slip op. (Fed. Cir. Apr. 25, 2016).

The Board also granted the Board’s remand request in the instant appeal.

Williams v. Merit Systems Protection Board, No. 2016-1629, slip op. (Fed. Cir.

June 22, 2016); LF, Tabs 7-8.

¶7 On remand, the Board issued a show cause order directing the parties to

submit evidence and argument regarding several issues raised in the appellant’s

brief before the Federal Circuit. RF, Tab 2. Both parties responded to the show

cause order. RF File, Tabs 5-8.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 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). An appellant who makes a

nonfrivolous allegation of jurisdiction is entitled to a hearing at which he then

must prove jurisdiction by a preponderance of the evidence. Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en

banc); see 5 C.F.R. § 1201.56(b)(2)(i)(A). For the following reasons, we find that

the appellant failed to raise a nonfrivolous allegation of Board jurisdiction over

the instant appeal.

The appellant failed to raise a nonfrivolous allegation that he was an employee

with Board appeal rights based on his service in the CCA position.

¶9 Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an

adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Mathis v. U.S.

5

Postal Service, 865 F.2d 232 (Fed. Cir. 1988). Pursuant to 5 U.S.C.

§ 7511(a)(1)(B), the definition of an employee with the right to appeal to the

Board includes a preference-eligible U.S. Postal Service employee who has

completed “1 year of current, continuous service” in the same or similar

positions. 6 5 U.S.C. § 7511(a)(1)(B); see 5 U.S.C. §§ 7511(b)(8), 7513(d);

Mathis, 865 F.2d at 232-33. An implementing regulation promulgated by the

Office of Personnel Management (OPM), 5 C.F.R. § 752.402, defines current

continuous service as “a period of employment or service immediately preceding

an adverse action without a break in Federal civilian employment of a workday.” 7

¶10 The appellant does not dispute that he was terminated from the CCA

position approximately 3 months after his appointment to that position, and that

there was a 5-day period between the end of his RCA appointment and the

effective date of his CCA appointment. IAF, Tab 12 at 22-24; LF, Tab 5; RF,

Tabs 6, 8. Nevertheless, he argues that he was an employee with Board appeal

rights under section 7511(a)(1)(B) at the time he was terminated from the CCA

position. LF, Tab 5; RF, Tabs 6 at 8-21, Tab 8 at 7-10. For the reasons discussed

below, we disagree.

6

Employees of the U.S. Postal Service also may appeal adverse actions to the Board

under 5 U.S.C. chapter 75 if they are management or supervisory employees, or

employees engaged in personnel work in other than a purely nonconfidential clerical

capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Toomey v. U.S.

Postal Service, 71 M.S.P.R. 10, 12 (1996). The appellant has not alleged, and the

record does not reflect, that he was employed in any of these capacities. IAF, Tabs 1-2,

Tab 12 at 17-22.

7

Although 5 C.F.R. § 752.402 refers to “current continuous employment,” rather than

“current continuous service,” the appellant does not dispute that the regulation was

enacted to implement 5 U.S.C. chapter 75, and applies to the definition of “current

continuous service” in 5 U.S.C. § 7511(a)(1)(B). LF, Tab 5; RF, Tabs 6, 8; see

Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322 n.1 (Fed. Cir. 2012)

(finding that “there is no suggestion” that the definition of current continuous

employment in 5 C.F.R. § 752.402 does not apply to section 7511(a)(1)).

6

The appellant cannot establish Board jurisdiction under a “continuing

employment contract” theory.

¶11 First, the appellant contends that he is an employee with Board appeal

rights under the “continuing employment contract theory” set forth in Roden. LF,

Tab 5 at 12-13, 25-47; RF, Tab 6 at 8-21, Tab 8 at 7-9. In Roden, the Board

found that a preference‑eligible employee who held a series of five temporary

appointments to the same position, separated by short breaks in service,

established jurisdiction over his termination appeal, even though he held the

appointment from which he was terminated for less than a year. 25 M.S.P.R.

at 367-68. The Board found that, even assuming that section 7511(a)(1)(B)

generally excludes service that is interrupted by a break in service of a workday,

it was obligated to “look beyond the form of statutory and other provisions, and

to determine the purpose which these provisions were intended to serve. ” Id.

at 367. Under the circumstances at issue, the Board found that the agency had

“effectively entered into a continuing employment contract” with the employee,

and therefore, despite several breaks, his service was “continuous” within the

meaning of section 7511(a)(1)(B). Id. at 368.

¶12 In our recent Opinion and Order in Winns v. U.S. Postal Service,

2017 MSPB 1, ¶¶ 9‑18 (2016), we overruled Roden and subsequent decisions

finding that an appellant may establish “current continuous service” for purposes

of section 7511(a)(1)(B) under a “continuing employment contract” theory,

despite a break in service of a workday. We held that the ordinary meaning of

“current continuous service” in section 7511(a)(1)(B) appears to preclude breaks

in service, and even assuming that the statute was silent or ambiguous, OPM’s

implementing regulation at 5 C.F.R. § 752.402 is entitled to deference under

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837,

842-43 (1984). Winns, 2017 MSPB 1, ¶¶ 9‑18.

¶13 We have considered the appellant’s arguments in the instant appeal

regarding why Roden should remain good law, and find that they were either

7

addressed in our Opinion and Order in Winns, or do not form a basis to revisit our

precedential decision overruling Roden. RF, Tab 6 at 8-21, Tab 8 at 7-9. For

example, the appellant’s argument that Roden benefits preference‑eligible

veterans does not allow us to extend the Board’s jurisdiction beyond that

provided by statute and regulation. RF, Tab 6 at 17; see Hartman v. Merit

Systems Protection Board, 77 F.3d 1378, 1380 (Fed. Cir. 1996) (finding that the

Board’s jurisdiction under 5 U.S.C. chapter 75 only encompasses appeals by

“employees” as defined in section 7511(a)(1)). Similarly, the fact that Roden has

been precedent for many years, RF, Tab 6 at 8, 15, and subsequent decisions have

relied on it, id. at 18, does not prevent us from overruling the decision when, as

here, after further consideration, we determine that it was incorrectly decided,

see, e.g., Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 16 (2013)

(overruling a prior Board decision that had been effect for approximately 15 years

when we determined that it was incorrectly decided).

¶14 The appellant also contends that any decision overruling Roden should not

apply to cases involving matters that transpired before Roden was overruled. RF,

Tab 6 at 15 n.11. However, under general principles of law, judicial decisions are

given retroactive effect to pending cases, whether or not those cases involve

pre-decision events. Heartland By-Products, Inc. v. U.S., 568 F.3d 1360, 1365

(Fed. Cir. 2009); Porter v. Department of Defense, 98 M.S.P.R. 461, ¶¶ 13‑14

(2005). Moreover, by definition, a jurisdictional ruling can never be prospective

only. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (finding

that a court lacks jurisdiction to consider the merits of a case over which it is

without jurisdiction and thus a jurisdictional ruling may never be prospective

only); Williams v. Department of Defense, 53 M.S.P.R. 23, 26 (1992) (same).

Therefore, because we overruled Roden and subsequent decisions relying on

Roden in Winns, the “continuing employment contract” does not provide a basis

for finding that the Board has jurisdiction over the instant appeal.

8

The appellant failed to otherwise raise a nonfrivolous allegation that his

service was “continuous” within the meaning of section 7511(a)(1)(B).

¶15 Alternatively, the appellant argues that, regardless of whether Roden is

good law, he is an employee with Board appeal rights because he did not undergo

a break in service. RF, Tab 6 at 14-15. Specifically, he contends that 5 C.F.R.

§ 752.402 does not define the term “break,” and that the term should not apply

when, as here, he was selected for the CCA position before his RCA appointment

ended. Id. We find this argument unpersuasive.

¶16 Although 5 C.F.R. § 752.402 does not define “break,” when construing a

regulation, we first examine the regulatory language itself to determine its plain

meaning, and if the language is clear and unambiguous, the inquiry ends with the

plain meaning. See Roberto v. Department of the Navy, 440 F.3d 1341, 1350

(Fed. Cir. 2006). The Board may refer to dictionary definitions to determine the

ordinary meaning of an undefined regulatory term. American Express Co. v. U.S.,

262 F.3d 1376, 1381 n.5 (Fed. Cir. 2001). The Merriam Webster Collegiate

Dictionary defines “break” as “an interruption in continuity.” Merriam Webster

Collegiate Dictionary 140 (10th ed. 2002). Similarly, Webster’s II New Riverside

University Dictionary defines “break” as “a disruption in continuity or

regularity.” Webster’s II New Riverside University Dictionary 199 (1984). Thus,

the ordinary meaning of the term “break” in 5 C.F.R. § 752.402 clearly

encompasses the 5-day interruption in the appellant’s employment with the

agency pursuant to the “required break” under the applicable collective

bargaining agreements. IAF, Tab 12 at 21‑22; RF, Tab 5 at 43, 73.

¶17 Accordingly, for this reason, and the reasons discussed above, the appellant

failed to raise a nonfrivolous allegation that he completed “1 year of current

continuous service” at the time that he was terminated, as required by 5 U.S.C.

9

§ 7511(a)(1)(B)(ii), and therefore, the Board lacks jurisdiction over the appeal

based on the appellant’s service in the CCA position. 8

The appellant failed to raise a nonfrivolous allegation that he retained his appeal

rights from his former CCA position under the theory set forth in Exum.

¶18 The appellant alternatively argues that, even if he did not have Board appeal

rights based on his service in the CCA position, he nevertheless retained his

appeal rights from his former RCA position under the theory set forth in Exum.

LF, Tab 5 at 47-51; RF, Tab 6 at 21-24, Tab 8 at 11-12. The appellant raised this

argument for the first time on appeal before the Federal Circuit, and the Federal

Circuit could have properly found that the argument was waived. See Bosley v.

Merit Systems Protection Board, 162 F.3d 665, 668 (Fed. Cir. 1998) (finding that

a party in a Board proceeding “must raise an issue before the administrative judge

if the issue is to be preserved for review” before the Federal Circuit). However,

the Federal Circuit has remanded the appeal to the Board, and because the

appellant alleges that his new argument implicates the Board’s jurisdiction over

the appeal, and the issue of jurisdiction is always before the Board and may be

raised by any party or sua sponte by the Board at any time during a Board

proceeding, we will consider it. See Lovoy v. Department of Health & Human

Services, 94 M.S.P.R. 571, ¶ 30 (2003).

¶19 In Exum, the Board found that when an individual moved from a full‑time

position with Board appeal rights to a part-time position without Board appeal

rights within the same agency, and the agency should have known that she was

acting under the erroneous impression that her appeal rights would not be affected

by the change, the agency was obligated to inform her of the effect that the

change in position would have on her Board appeal rights. 62 M.S.P.R.

8

We make no finding as to whether the RCA and CCA positions are the same or

similar, having found that the Board lacks jurisdiction over the appeal on the ground

that the appellant did not have 1 year of current continuous service. See 5 U.S.C.

§ 7511(a)(1)(B) (requiring that the current continuous service be “ in the same or

similar positions”).

10

at 345-49. The Board remanded the appeal to, among other things, determine

whether the individual would have accepted the new position if she had known of

the effect on her Board appeal rights. Id. at 350.

¶20 Subsequent Board decisions have relied on Exum to find that: (1) when an

employee moves between positions within the same agency, and forfeits his

appeal rights as a result of accepting the new appointment, the agency must

inform the employee of the effect the move will have on his appeal rights ; and

(2) if the employee was unaware of the loss of Board appeal rights that would

result from accepting the new position and he would not have accepted the new

position had he known of the loss of appeal rights, he is deemed not to have

accepted the new appointment and to have retained the rights incident to his

former appointment. Boudreault v. Department of Homeland Security,

120 M.S.P.R. 372, ¶¶ 4, 11 (2013); Yeressian v. Department of the Army,

112 M.S.P.R. 21, ¶ 12 (2009); Lopez v. Department of the Navy, 103 M.S.P.R. 55,

¶¶ 12, 16 (2006), overruled in part on other grounds by Nelson v. Department of

Health & Human Services, 119 M.S.P.R. 276 (2013).

¶21 On remand, the agency requests that we overrule Exum and subsequent

decisions relying on Exum. 9 RF, Tab 5 at 19-21. We decline to do so here.

¶22 Alternatively, the agency requests that we narrow the application of Exum

to circumstances where the agency has reason to know that an employee

erroneously believes that he will retain his appeal rights despite a change in

9

In requesting that we overrule Exum, the agency erroneously asserts that the Federal

Circuit “criticized Exum and its progeny” in Rice v. Merit Systems Protection Board,

522 F.3d 1311 (Fed. Cir. 2008). RF, Tab 5 at 19-20. In Rice, the Federal Circuit

declined to decide whether it would adopt the rule set forth in Exum, but instead found

that regardless, the rule could not be applied to the facts at issue, where statutory

amendments to section 7511 enacted after the appellant accepted her new position

would have denied her Board appeal rights in that position. Id. at 1319-20.

Subsequently, in Carrow v. Merit Systems Protection Board, 626 F.3d 1348, 1354 (Fed.

Cir. 2010), the Federal Circuit again declined to either approve or disapprove of the

rule set forth in Exum and subsequent Board decisions applying Exum.

11

position. RF, Tab 5 at 10-12, Tab 8 at 11-12. However, at this time, we decline

to overrule or narrow subsequent Board decisions applying an agency’s duty to

advise an employee of the loss of Board appeal rights regardless of whether there

was evidence that the agency knew or should have known that the employee was

operating under a misapprehension regarding the effect of moving to a new

position with the agency. See Clarke v. Department of Defense, 102 M.S.P.R.

559, ¶ 11 (2006); Edwards v. Department of Justice, 86 M.S.P.R. 404, ¶¶ 6-10

(2000); see also Rice, 522 F.3d at 1318-19 (finding that the Board’s decisions

do not limit the application of Exum to circumstances when an agency knew or

should have known that the employee was operating under a misapprehension

regarding the effect of a change in position on the loss of appeal rights).

¶23 Accordingly, we must determine whether, under the circumstances at issue

here, the appellant raised a nonfrivolous allegation of jurisdiction over his appeal

based on the theory set forth in Exum and its progeny. It is undisputed that the

appellant was an employee with Board appeal rights in the RCA position when he

accepted the CCA position, because he was preference eligible and served in that

position continuously for more than a year. IAF, Tab 12 at 20‑21; RF, Tab 5

at 8. We further find that when, as here, the appellant was selected for the CCA

position while he was serving in the RCA position, and the 5-day break in service

only occurred because he was changing positions within the agency, the break in

service does not preclude the application of the theory set forth in Exum. Cf.

Williams-Hargraves v. Department of Housing & Urban Development,

88 M.S.P.R. 176, ¶ 11 (2001) (finding that the theory in Exum did not apply when

an appellant had not been employed by an agency for 7 months when she accepted

her new position with the agency).

¶24 It appears undisputed that the agency did not explicitly inform the appellant

that he would lose his Board appeal rights if he moved from the RCA position to

the CCA position. RF, Tabs 5-8. However, the agency contends that it gave the

appellant “sufficient information to understand he would waive his appeal rights

12

by changing positions” because: (1) the CCA vacancy announcement stated that

breaks in service were required and that the position was a temporary

appointment not to exceed 360 days; and (2) the appellant’s job offer letter for the

CCA position stated that his appointment would be subject to a probationary

period. RF, Tab 5 at 15-16, 88.

¶25 Nevertheless, for a preference-eligible individual in the excepted service,

such as the appellant, the absence or completion of a probationary or trial period

is not determinative of whether he is an employee with Board appeal rights.

Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9 (2011).

Rather, the dispositive issue is whether the appellant satisfied the requirement of

1 year of current continuous service in the same or similar positions, and service

in a temporary appointment may be counted towards the completion of that

requirement. Id.; see 5 U.S.C. § 7511(a)(1)(B). Although the appellant was

aware that a break in service was required at the time that he changed positions,

there is no indication that he understood the legal implications of the required

break in service on his Board appeal rights. 10

¶26 We need not decide whether the information that the agency provided the

appellant was sufficient to notify him that he would lose his appeal rights because

regardless, for another reason, we find that he failed to raise a nonfrivolous

allegation of jurisdiction over his appeal under the theory in Exum. Under Exum

and its progeny, an appellant may only retain Board appeal rights from a former

position if he establishes that he would not have accepted his new position with

the agency if he had known of the resulting loss of appeal rights. 11 Yeressian,

10

However, the appellant has not directly asserted that he failed to understand the legal

implications of the break. RF, Tab 6 at 27-28.

11

Although the appellant requests that we overrule prior Board precedent to this effect,

we decline to do so. RF, Tab 6 at 23-24. The appellant has failed to provide a

persuasive justification as to why we would restore appeal rights from a former position

when an employee would have accepted a new position r egardless of the loss of

appeal rights.

13

112 M.S.P.R. 21, ¶ 13 (remanding an appeal for a jurisdictional finding regarding

whether an appellant would have accepted a new position if he had known of the

loss of appeal rights); Exum, 62 M.S.P.R. at 350 (same). On remand, we ordered

the appellant to submit evidence and argument regarding whether he would have

accepted the CCA position if the agency had informed him that he would lose his

appeal rights. RF, Tab 2 at 4. In response, the appellant submitted a declaration

under penalty of perjury, which stated, “At this point in time, I do not know

whether I would have accepted the CCA position in April 2015 had I been

informed by the [agency] that I would have allegedly lo st my appeal rights.” RF,

Tab 6 at 28. Because the appellant failed to allege that he would not have

accepted the CCA position if he had known that he would lose his appeal rights,

we find that he failed to raise a nonfrivolous allegation of jurisdiction over

the appeal. 12

¶27 Accordingly, for these reasons and the reasons set forth above, we affirm

the initial decision, as modified, to supplement the administrative judge’s

jurisdictional analysis, still dismissing the appeal for lack of jurisdiction. 13

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

¶28 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:

12

The Board’s regulations define a nonfrivolous allegation as “an assertion that, if

proven, could establish the matter at issue.” 5 C.F.R. § 1201.4(s).

13

We also have considered the appellant’s argument before the Federal Circuit that the

Board has jurisdiction over the appeal based on a purported due process violation, and

find that it fails to raise a nonfrivolous allegation of Board jurisdiction. LF, Tab 5

at 51-54. An allegation that the agency failed to provide due process does not confer an

independent basis for the Board to review matters outside of its jurisdiction. Rivera v.

Department of Homeland Security, 116 M.S.P.R. 429, ¶ 16 (2011).

14

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 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

15

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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.