The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY KING, DOCKET NUMBER
Appellant, AT-315H-17-0383-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: May 16, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Randy King, Glennville, Georgia, pro se.
Gerald L. Gilliard, Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for rev iew, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 b een identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 Effective March 7, 2016, the agency appointed the appellant to an Equal
Employment Manager position in the competitive service. Initial Appeal File
(IAF), Tab 5 at 43-44. The Standard Form 50 (SF-50) documenting the
appellant’s appointment characterizes the action as “Reinstatement Career” and
cites reinstatement authority under 5 C.F.R. § 315.401. Id. The SF-50 also
indicates that his appointment was subject to the completion of a 1 -year
initial probationary period beginning on March 7, 2016. Id. at 43.
Effective March 3, 2017, prior to the completion of the 1 -year period, the agency
terminated the appellant for allegedly failing to demonstrate his fitness or
qualifications for continued employment. 2 Id. at 20-23, 30-31.
¶3 The appellant appealed his termination to the Board, and he did not request
a hearing. IAF, Tab 1 at 1-16. In a Jurisdiction Order, the administrative judge
informed the appellant that the Board may not have jurisdicti on over his appeal,
apprised him of his burden of proving jurisdiction over a probationary
termination appeal, and ordered him to file evidence or argument on the
jurisdictional issue. IAF, Tab 3. The appellant did not respond.
¶4 Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial
Decision (ID) at 1, 3. Specifically, she found that the appellant did not dispute
that he was terminated during a probationary period. ID at 2. She further found
that the record reflects that the appellant was not terminated for any
preappointment reason, and she noted that he did not raise claims of
discrimination based on marital status or partisan politics. ID at 2 -3. In addition,
the administrative judge stated that, to the extent the appellant is alleging
whistleblower reprisal, he first must exhaust his remedies with the Office of
2
The SF-50 documenting the appellant’s termination cites the legal autho rity under
5 C.F.R. § 315.804. IAF, Tab 5 at 20.
3
Special Counsel before the Board may exercise jurisdiction over any such reprisal
claims through an individual right of action appeal. ID at 3.
¶5 The appellant has filed a petition for review challenging the administrative
judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1.
The agency has filed a response, to which the appellant has replied.
PFR File, Tabs 3‑4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 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 bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Generally, if an appellant makes a nonfrivolous
allegation 3 that the Board has jurisdiction over his appeal, he is entitled to a
hearing on the jurisdictional question. Henderson v. Department of the Treasury,
114 M.S.P.R. 149, ¶ 8 (2010).
¶7 The Board lacks jurisdiction under 5 U.S.C. chapter 43 over a
performance‑based “removal of an employee in the competitive service who is
serving a probationary or trial period under an initial appointment or who has not
completed 1 year of current continuous employment under other than a temporary
appointment limited to 1 year or less.” 5 U.S.C. § 4303(f)(2). To establish Board
jurisdiction under 5 U.S.C. chapter 75 over an adverse action, an individual must,
among other things, show that he satisfies one of the definition s of “employee” in
5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); Walker v. Department of the Army,
119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive service, like
the appellant, this means that he either must not be serving a probationary or trial
period under an initial appointment or, except as provided in section 1599e of
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
title 10, 4 have 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)(i)-(ii);
see Walker, 119 M.S.P.R. 391, ¶ 5. Under 5 C.F.R. § 315.806, an individual in
the competitive service has the limited right to appeal a termination during a
probationary period to the Board when the agency action was based on partisan
political reasons or marital status, or was based (in whole or part) on
preappointment reasons and the agency did not follow the procedures of 5 C.F.R.
§ 315.805. See Walker, 119 M.S.P.R. 391, ¶ 5.
¶8 For the first time on review, the appellant raises a claim of discrimination
based on partisan political reasons. PFR File, Tab 1 at 5, Tab 4 at 8. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant asserts that he did
not respond to the administrative judge’s Jurisdiction Order because he has had
problems with the Board’s e-Appeal system. PFR File, Tab 1 at 4, Tab 4 at 6.
He does not allege that he did not receive the Jurisdiction Order or that
he attempted to file a response. We find that the appellant’s nonspeci fic claim of
e-Appeal problems is not an adequate reason to consider his new argument.
Nevertheless, we find that the appellant has failed to make a nonfrivolous
allegation that his termination was based on his affiliation with any political party
or candidate. See Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 7
4
Section 1105 of the National Defense Authorization Act for Fiscal Year 2016
(NDAA), Pub. L. No. 114-92, 129 Stat. 726, 1023-24 (enacted on November 25, 2015),
amended the definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)(ii) by
adding an exception codified at 10 U.S.C. § 1599e. Section 1599e provides, among
other things, that individuals appointed to a permanent, competitive-service position at
the Department of Defense are subject to a 2-year probationary period and only qualify
as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if they have completed 2 years of
current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d). Here, because the
appellant was appointed after the NDAA’s enactment, the amended definition of
“employee” applies in this appeal.
5
(2012) (finding that the Board and its reviewing court have held that
discrimination based on “partisan political reasons” under 5 C.F.R. § 315.806(b)
means discrimination based on affiliation with any political party or candidate ).
¶9 In addition, the appellant argues for the first time on review that he was
appointed in 2016 by reinstatement with career status, and thus, he was not
serving an initial appointment subject to a probationary period when the agency
terminated him. PFR File, Tab 1 at 2. He further asserts that he has career tenure
because he completed 12 years of continuous service, and he submits an SF-50
documenting his resignation, effective October 1, 1986, from a Contract
Specialist position with the Department of the Army in the competitive service. 5
Id. at 2-3, 8. He also submits certification of his service in the armed forces and
his service-connected disability. Id. at 10.
¶10 As discussed above, the appellant has failed to justify why he was unable to
raise his new arguments before the administrative judge. Moreover, the appellant
has not explained why the proffered evidence supporting his new reinstatement
argument was unavailable before the record closed. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (finding that the Board generally will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable before the record was closed despite the party’s
due diligence). However, we find that this jurisdictional issue was apparent on
the record as it existed before the administrative judge, in particular the agency’s
submission of the SF-50 documenting his 2016 appointment. IAF, Tab 5
at 43‑44. The issue of the Board’s jurisdiction is always before the Board and
may be raised by either party or sua sponte by the Board at any time during a
Board proceeding. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313,
¶ 5 (2010); see Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 678
5
The SF-50 indicates that his service computation date was May 22, 1973. PFR File,
Tab 1 at 8.
6
(1991) (finding that the administrative judge did not err by addressing sua sponte
the jurisdictional issue of whether the appellant was a probationary employee) .
Thus, we will consider the appellant’s reinstateme nt argument. For the following
reasons, we find that the appellant has made a nonfrivolous allegation of
jurisdiction.
¶11 Pursuant to 5 C.F.R. § 315.401, an agency has the authority to appoint by
reinstatement to a competitive-service position an individual who previously was
employed under a career or career-conditional appointment. 6 There is no time
limit on the reinstatement eligibility of a preference eligible or an individual who
completed the service requirement for career tenure. 5 C.F.R. § 315.401(b).
Under 5 C.F.R. § 315.801(a)(2), 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 the employee was reinstated under subpart D ( 5 C.F.R.
§ 315.401), “unless during any period of service which affords a current basis for
reinstatement, the employee completed a probationary period or served with
competitive status under an appointment which did not require a probationary
period.” If an employee’s appointment was a reinstatement that meets the criteria
of 5 C.F.R. § 315.801(a)(2), then he was not required to complete a probationary
period under that section, and thus, he may be an “employee” with adverse-action
appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i). See Abdullah v. Department of
the Treasury, 113 M.S.P.R. 99, ¶¶ 11-14 (2009) (remanding a termination appeal
to determine whether the appellant was a statutory employee under 5 U.S.C.
§ 7511(a)(1)(A)(i) because he was appointed by reinstatement and was not
required to complete a probationary period under 5 C.F.R. § 315.801(a)(2)).
6
A “reinstatement” is defined as “the noncompetitive reemployment for service as a
career or career-conditional employee of a person formerly employed in the competitive
service who had a competitive status or was serving probation when he was separated
from the service.” 5 C.F.R. § 210.102(b)(15) .
7
¶12 Here, the SF-50 documenting the appellant’s 2016 appointment indicates
that he was reinstated with career status pursuant to 5 C.F.R. § 315.401.
IAF, Tab 5 at 43-44. Although “the SF-50 is not a legally operative document
controlling on its face an employee’s status and rights,” it still can be considered
as evidence when determining the nature of an action. Grigsby v. Department of
Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984). Further, there is nothing in the
record before the administrative judge to suggest that there is a time limit on the
appellant’s reinstatement eligibility. In particular, under 5 C.F.R. § 315.401(b),
there is no time limit on his reinstatement eligibility if he is a preference
eligible, as indicated on his initial appeal form. IAF, Tab 1 at 1. Thus, w e find
that the appellant has made a nonfrivolous allegation that he was reinstated
pursuant to 5 C.F.R. § 315.401, was not required to complete a probationary
period under 5 C.F.R. § 315.801(a)(2), and is an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i).
¶13 Based on the foregoing, we remand this appeal for the administrative judge
to allow the parties to address the jurisdictional issues described above.
In particular, the administrative judge should afford the parties an opportunity to
submit evidence and argument regarding the nature of the appellant’s
appointment with the agency, what prior appointment(s) served as a basis for his
reinstatement, and whether, during the prior appointment(s), he completed a
probationary period or was not required to serve one. 7 In addition, the parties
should address whether the appellant is an individual covered under 10 U.S.C.
§ 1599e and what effect, if any, such statutory provision has on the jurisdictional
analysis.
¶14 Because we are remanding this appeal for purposes of jurisdiction, we
decline to address the appellant’s additional arguments and evidence on the
merits of his termination, including his claims regarding due process, retaliation,
7
The appellant may resubmit the evidence that he has provided on review regarding his
reinstatement argument.
8
prohibited personnel practices, and damages. PFR File, Tabs 1, 4. He may
present such arguments and evidence again if, on remand, the administrative
judge finds that the Board has jurisdiction over this appeal.
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.