Opinion

Benjamin Jenkins v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Nov 8, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that a decision on the merits would be a nullity in the absence of Board jurisdiction

How later courts described this case

finding that a decision on the merits would be a nullity in the absence of Board jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BENJAMIN E. JENKINS, DOCKET NUMBER

Appellant, SF-0752-16-0486-I-1

DEPARTMENT OF THE NAVY, DATE: November 8, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Benjamin E. Jenkins, La Mesa, California, pro se.

Julianne Surane, Port Hueneme, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his involuntary resignation appeal for lack of Board 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

erroneous 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. 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On May 11, 2016, the appellant, a Supervisory Administrative/Technical

Specialist, filed a timely appeal alleging that his resignation was involuntary.

Initial Appeal File (IAF), Tab 1. In response to the administrative judge’s

acknowledgement order noting that the Board may not have jurisdiction over his

appeal, the appellant admitted that his resignation was during his probationary

period but alleged that the proposed termination that preceded his resignation was

for “partisan reasons.” IAF, Tab 2 at 2, Tab 5 at 4-9.

¶3 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision finding that the appellant was not an “employee” with

Board appeal rights as defined at 5 U.S.C. § 7511(a)(1)(A), and thus the Board

lacked jurisdiction over the appellant’s probationary appeal. IAF, Tab 13, Initial

Decision (ID) at 1, 8. The administrative judge also held that the appellant failed

to raise nonfrivolous allegations that he was subjected to partisan political

discrimination, or that his resignation was involuntary. ID at 9, 12. Finally, the

administrative judge found that, because the appellant lacked an otherwise

appealable claim, the Board lacked jurisdiction to consider his claims of

discrimination and retaliation for engaging in equal employment opportunity

activity. ID at 12-13.

¶4 On review, the appellant does not dispute the fact that he was serving in a

probationary period at the time of his resignation. Petition for Review (PFR)

File, Tab 1 at 4, Tab 4 at 4. Instead, he argues, as he did below, that his proposed

termination was motivated by what he describes as “partisan political

motivations” and “internal partisan political reasons.” PFR File, Tab 1 at 5,

Tab 4 at 4; see IAF, Tab 8 at 5. He also restates his claim that his resignation

was involuntary, and argues that his performance was satisfactory and

undeserving of the proposed termination. PFR File, Tab 1 at 4-5. The agency has

responded to the petition for review. PFR File, Tab 3.

The appellant was not an “employee” under 5 U.S.C. § 7511(a)(1)(A)(i).

¶5 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). Whether an individual in the

competitive service has the right to appeal an adverse action depends on whether

he is an “employee” under 5 U.S.C. § 7511(a)(1)(A). Walker v. Department of

the Army, 119 M.S.P.R. 391, ¶ 5 (2013). Under 5 U.S.C. § 7511(a)(1)(A), an

employee is an individual in the competitive service (i) who is not serving a

probationary or trial period under an initial appointment, or (ii) who has

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

appointment limited to 1 year or less. In an adverse action appeal, an appellant is

entitled to a hearing on jurisdiction if he makes a nonfrivolous claim of Board

jurisdiction, at which he must prove jurisdiction by preponderant evidence.

Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir.

2006) (en banc). Nonfrivolous allegations are allegations of fact that, if proven,

could establish that the Board has jurisdiction over the matter at issue. Walker,

119 M.S.P.R. 391, ¶ 6 n.2.

¶6 Here, although the administrative judge did not directly address this point,

because the appellant was appointed to the position at issue by reinsta tement, he

is subject to the regulation at 5 C.F.R. § 315.801(a)(2) regarding probationary

periods for reinstated individuals. 2

¶7 An agency may appoint by reinstatement to a competitive -service position

an individual who previously was employed under a career or career -conditional

appointment. 5 C.F.R. § 315.401(a). Under 5 C.F.R. § 315.801(a), the first year

of service of an employee who is given a career or career -conditional appointment

in the competitive service is a probationary period when, among other things, the

employee was reinstated under the authority set forth at 5 C.F.R. § 315.401,

unless during any period of service that affords a current basis for reinstatement,

the employee completed a probationary period or served with c ompetitive status

under an appointment that did not require a probationary period. Abdullah v.

Department of the Treasury, 113 M.S.P.R. 99, ¶¶ 11-12 (2009). Thus, if the

appellant’s appointment was a reinstatement appointment that met the criteria of

5 C.F.R. § 315.801(a)(2), then he would be an “employee” with adverse action

appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i). Id.

¶8 The Standard Form 50 documenting the appellant’s appointment reflects

that he was appointed by reinstatement under 5 C.F.R. § 315.401. IAF, Tab 7

at 11. Additionally, the agency does not dispute that the appellant was appointed

to his position by reinstatement. Id. at 4. However, as the appellant concedes,

and as the undisputed record establishes, the appellant did not complete a

probationary period while serving in the position from which he was reinstated,

resigning from that position after only 5 months. PFR File, Tab 4 at 4; IAF,

Tab 7 at 10, Tab 10 at 4. Thus, even if the appellant’s prior service were

Although the appellant’s Standard Form 50 identifies that his appointment was by

reinstatement, it does not identify the position from whi ch he was reinstated. IAF,

Tab 7 at 11. Nothing in the record suggests that the appellant was not reinstated from

the non-supervisory Administrative/Technical Specialist position with the agency that

he occupied in the year prior to the position involved in this appeal.

considered under 5 C.F.R. § 315.801(a)(2), he still would not have completed the

requisite 1-year probationary period, and would not have any statutory right of

appeal to the Board. 3

The administrative judge correctly found that the appellant was not an

“employee” under 5 U.S.C. § 7511(a)(1)(A)(ii).

¶9 Alternatively, an appellant can show that, while he may be a probationer, he

satisfies the definition of an “employee” in 5 U.S.C. § 7511(a)(1)(A)(ii), which

requires that he have “completed 1 year of current continuous service under other

than a temporary appointment limited to 1 year or less.” Hurston v. Department

of the Army, 113 M.S.P.R. 34, ¶ 9 (2010). The Board has held that, for

competitive-service employees, “current continuous service” means a period of

employment or service immediately preceding an adverse action without a break

in Federal civilian employment of a workday. Ellefson v. Department of the

Army, 98 M.S.P.R. 191, ¶ 14 (2005); 5 C.F.R. § 752.402.

¶10 It is undisputed that the appellant resigned from his previous Federal

position with the same agency, effective September 21, 2014, and thus had a

13-month break in service prior to his November 16, 2015 reinstatement

appointment. IAF, Tab 7 at 10-11. The appellant did not identify any other

Federal service during the 13-month period between his resignation on

September 21, 2014, and his reinstatement appointment on November 16, 2015.

IAF, Tab 7 at 11, Tab 10 at 4. Additionally, it is undisputed that the appellant

was only employed in his reinstatement position for less than 6 months, from

November 16, 2015, until his resignation on May 2, 2016. IAF, Tab 7 at 11,

Tab 5 at 14. As such, we agree with the administrative judge’s fi nding that the

appellant does not meet the definition of “employee” under 5 U.S.C.

We also agree with the administrative judge that the appellant’s prior service cannot

be counted towards the completion of his probationary period under 5 C.F.R.

§ 315.802(b) because it was followed by a break in service of more than 30 calendar

days.

§ 7511(a)(1)(A)(ii) because he lacked 1 year of current continuous service. ID

at 6-7.

The appellant has not demonstrated that he was subjected to discrimination on the

basis of any partisan political activity.

¶11 In describing his claim of discrimination on the basis of partisan political

activity, the appellant argues that he was in the “wrong camp” and one “adver se

to” his supervisor within the agency’s contracting department, and that this was

the reason that the agency proposed his termination. PFR File, Tab 1 at 5-6. The

appellant misunderstands the meaning of the language; the phrase “partisan

political reasons” as used in 5 C.F.R. § 315.806(b), means “discrimination based

on affiliation with any political party or candidate.” Mastriano v. Federal

Aviation Administration, 714 F.2d 1152, 1155-56 (Fed. Cir. 1983). The appellant

does not allege that he suffered any discrimination based on his affiliation with

any political party or candidate. Instead, he repeatedly argues for an expanded

reading of the term “partisan political motivations” to include the agency’s

internal “partisan” divisions. PFR File, Tab 1 at 5. However, nothing in 5 C.F.R.

§ 315.806(b) or in any prior Board precedent contemplates such a reading of the

term.

¶12 Merely citing the language, the appellant has not provided any evidence that

he suffered any harm as a result of his affiliation with any political party or

candidate, or even that any agency employee was aware that he had any such

affiliation. PFR File, Tab 1 at 5-6. As such, we agree with the administrative

judge’s conclusion that the appellant’s allegation of partisan political status

discrimination is without merit.

¶13 Finally, as he did below, the appellant argues that his resignation was

involuntary, stating that the agency coerced him into resigning by placing him in

a “high stress” situation that “effectively deprived [him] of free cho ice” when it

instructed him that he would be terminated and provided him the opportunity to

resign in lieu of termination. Id. at 4. The appellant also argues that his

performance was adequate and that he was not advised of any performance

problems prior to being informed that he would be terminated. Id. at 5. These

arguments pertain to the merits of the involuntary resignation claim, rather than

to the Board’s jurisdiction over the appeal, and do not provide a basis to disturb

the initial decision. See Schmittling v. Department of the Army, 219 F.3d 1332,

1337 (Fed. Cir. 2000) (finding that a decision on the merits would be a nullity in

the absence of Board jurisdiction); Sapla v. Department of the Navy,

118 M.S.P.R. 551, ¶ 7 (2012) (finding that an appellant’s arguments on review

regarding the merits of an agency action were not relevant to whether the Board

had jurisdiction over an appeal).

¶14 Accordingly, we affirm the administrative judge’s determination to dismiss

the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the ti me limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Cir cuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the