The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY B. BENOIT, DOCKET NUMBER
Appellant, DC-3443-21-0386-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffery B. Benoit, Providence Forge, Virginia, pro se.
Megan Garry, Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Levitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions
such as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. Except as expressly
MODIFIED to vacate the administrative judge’s factual findings and clarify that
the appellant has not made a nonfrivolous allegation that he was subjected to
an appealable adverse action, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was briefly employed as a program analyst at a U.S. Army
installation at Fort Lee, Virginia. Initial Appeal File (IAF), Tab 1 at 1, 7-8.
The appellant’s characterization of his employment differs from his Standard
Form 50 (SF-50) and the evidence put forward by the agency. The SF-50 that
he submitted into the record reflects that, effective February 16, 2021,
the appellant received a provisional appointment, not to exceed (NTE)
April 17, 2021. Id. at 7-8. However, in filing the present appeal, the appellant
argued that he had been, “[T]erminated from [P]ermanent [P]osition” on
April 17, 2021. Id. at 3. In his initial appeal form, the appellant checked the
boxes indicating that he was a permanent Federal employee in the competitive
service, and that he was not “serving a probationary, trial, or initial service period
at the time of the action” he was appealing. Id. at 1. He identified the length of
his government service as 2 months. Id.
¶3 The appellant maintained he was “hired by name based on qualifications”
with veterans’ preference and that the job posting for the program analyst
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position stated that it was a permanent position. Id. at 5, 10. He submitted copies
of a tentative offer letter dated January 19, 2021, and official offer letter dated
January 26, 2021, both of which stated that the position was permanent.
Id. at 11-14. The appellant stated that, during a meeting on April 8, 2021,
his supervisor told him that it was his last day of work and that he would be paid
until April 17, 2021. Id. at 5. He stated that, after he realized that the supervisor
had not given him anything in writing regarding the termination, he contacted
his supervisor asking for a termination letter. Id. The supervisor purportedly
stated that he had contacted Human Resources (HR) about drafting a termination
letter. Id. The appellant maintained that it was his “belief that this is when
[his SF-50] was altered to reflect Provisional Status and dates. ” Id. He submitted
an undated termination letter into the record that stated, “Your provision
appointment was set to expire on 17 April. Management has elected to not
convert this appointment to permanent.” Id. at 15.
¶4 In its narrative response, the agency argued that the Board lacked
jurisdiction over the appeal. IAF, Tab 6 at 4-7. It asserted that the appellant had
received a “by-name (noncompetitive) provisional (temporary) appointment”
pursuant to an appointment authority permitting temporary appointments
of qualified veterans, and that the appointment had expired April 17, 2021.
Id. at 4-5. It argued that the termination of the appellant’s appointment on the
expiration date was not an appealable adverse action. Id. at 5, 22. The agency
argued that the appellant’s assertion that it altered his SF-50 was conclusory and
contradicted by the evidence. Id. at 7. In a sworn declaration, an HR specialist
set forth the circumstances of the agency’s offer of a provisional appointment to
the appellant, after he informed her that he had left his previous position in
Kuwait in order to accompany his spouse to Fort Lee and provided documents
demonstrating that he qualified for the hiring authority. Id. at 17. The agency
also submitted a sworn declaration from an HR specialist who stated that she had
made an error in the appellant’s offer letter by omitting the information that it
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was a temporary appointment with a not-to-exceed date but also attested that
she had verbally informed the appellant about the nature of his provisional
appointment. Id. at 20. Finally, the agency submitted an SF-50 from the
appellant’s prior position at a U.S. Army installation in Kuwait, reflecting
a provisional appointment with a not-to-exceed date and argued that this
prior employment demonstrated that the appellant was aware of the nature of
a temporary appointment. Id. at 40.
¶5 Subsequently, the administrative judge issued an order to show cause,
noting that the agency had submitted evidence into the record indicating that the
appellant held a provisional or temporary appointment that lapsed according to its
expiration date, and therefore the Board lacked jurisdiction. IAF, Tab 7 at 3.
She ordered the appellant to submit evidence and argument demonstrating that the
appeal should not be dismissed for lack of jurisdiction. Id. at 3-4.
¶6 In response, the appellant argued that none of the documents he had
received pertaining to the program analyst position, including the offer letters,
stated that the position was a provisional appointment with a not-to-exceed date.
IAF, Tab 8 at 4-5. He stated further that he had identified himself as a permanent
employee at a new employee orientation and no one corrected him. Id. at 6.
The appellant maintained that he was unable to access his SF-50 and had
contacted an HR professional about this issue. Id. at 6-7. He asserted that,
“[f]rom the date [he] was hired on February 16, 2021, through the date that
[he] was fired April 8, 2021, there was never any mention that [he] was a
provisional employee” by his supervisor or any HR professional. Id. at 7.
The appellant stated that his previous position at a U.S. Army installation in
Kuwait was a “permanent position with a one-year duration [sic].” Id. at 7.
Finally, the appellant argued that because the job posting and offer letters did not
explain that the appointment was provisional, the agency “must accept
responsibility for their actions,” and he opined that the agency had engaged in a
“fabrication of the facts to shield the agency from an action.” Id. at 8.
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¶7 Without holding the requested hearing, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 9,
Initial Decision (ID) at 1, 7. The administrative judge found that the appellant
had received a temporary appointment that had expired on its not -to-exceed date
and that the expiration of a temporary appointment is not an action appealable to
the Board. ID at 4-5. She also found that, even if the appellant’s appointment
was not provisional, the record showed that he would not meet the definition of
an employee with chapter 75 appeal rights. ID at 6.
¶8 The appellant has filed a petition for review, arguing that he was “denied
[his] procedural due process rights.” Petition for Review (PFR) File, Tab 1 at 18.
He repeats his arguments that he held a permanent position because none of the
documents related to his hiring identified a provisional appointment and the
agency altered his SF-50. Id. at 18-21. The appellant submits evidence
concerning the jurisdictional issue, some of which was already in the record.
Id. at 4-15. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 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). The existence of Board
jurisdiction is a threshold issue in adjudicating an appeal, and the appellant bears
the burden of establishing jurisdiction by preponderant evidence. Scott v.
Department of the Air Force, 113 M.S.P.R. 434, ¶ 5 (2010); 5 C.F.R.
§ 1201.56(b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing if
he presents nonfrivolous allegations of Board jurisdiction. Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has
made a nonfrivolous allegation of jurisdiction entitling him to a hearing,
the administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
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contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Id.
¶10 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). However,
we have considered the appellant’s new evidence and argument to the extent it
concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can
be raised at any time including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5
(considering evidence submitted for the first time on review because it was
relevant to the Board’s jurisdiction).
¶11 Here, the administrative judge arguably improperly weighed the evidence i n
finding that the appellant held a temporary appointment and did not meet the
definition of an employee for the purposes of chapter 75 appeal rights, and we
vacate those findings. ID at 5-7; see Ferdon, 60 M.S.P.R. at 329. Rather the
administrative judge should have assessed whether the appellant had made
nonfrivolous allegations that he suffered an appealable adverse action.
¶12 It is well established that the expiration of a temporary appointment is not
an adverse action appealable to the Board. See Scott, 113 M.S.P.R. 434, ¶ 9;
Endermuhle v. Department of the Treasury, 89 M.S.P.R. 495, ¶ 9 (2001); 5 C.F.R.
§ 752.401(b)(11) (excluding the termination of an appointment on the expiration
date specified as a basic condition of employment at the time the appointment
was made from the adverse actions covered under chapter 75). The Board looks
to the totality of the circumstances to determine the nature of an employee’s
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appointment; an employee’s SF-50, although the customary document used to
memorialize a personnel action, is not controlling. Scott, 113 M.S.P.R. 434, ¶ 8.
Here, the appointment SF-50, authorized on February 3, 2021, with an effective
date of February 16, 2021, stated that the appellant received a provisional
appointment with a not-to-exceed date of April 17, 2021. IAF, Tab 1 at 16. The
SF-50 states that the appointment was made pursuant to 5 C.F.R. § 316.402(b)(4),
which authorizes temporary noncompetitive appointments of veterans with a
service‑connected disability of 30 percent or more, for which the appellant
qualified as indicated by his veterans’ preference code. Id. Finally, the SF-50
explicitly states that the appointment is on a provisional basis. Id. As noted by
the administrative judge, the agency has admitted that the initial and final offer
letters it sent to the appellant incorrectly stated that it was a permanent position.
ID at 5; IAF, Tab 1 at 11-14, Tab 6 at 20.
¶13 The essence of the appellant’s arguments on appeal and on review is that
he detrimentally relied on documents from the agency, notably the offer letters
and vacancy announcement, and therefore, he should be treated as if he was
an employee in a permanent competitive-service position for purposes of Board
appeal rights. IAF, Tab 1 at 5, Tab 8 at 6-8; PFR File, Tab 1 at 18-26. He states
that the agency’s HR errors created a “legally binding contract” and that the
provisional nature of the position was not part of the contract because i t was “not
presented in the job announcement.” PFR File, Tab 1 at 18. The appellant
challenges the accuracy of the sworn declaration s from the agency HR
professionals attesting that they had informed him of the nature of his provisional
appointment and repeats his bare assertion that the agency added the provisional
appointment with a not-to-exceed date to his SF-50 only after he demanded
a termination letter from his supervisor. Id. at 19-20; IAF, Tab 6 at 17, 20.
He submits for the first time on review April 2021 email correspondence, in
which a union representative requests information regarding the nature of the
appellant’s employment and relays the appellant’s understanding that he was
8
a permanent employee due to the language in his job offer and th e vacancy
announcement. PFR File, Tab 1 at 4-5. He also submits a document defining
various blocks and codes in SF-50 records and a copy of the appointment and
termination SF-50s that the agency had previously submitted into the record.
Id. at 8-15.
¶14 Reviewing the totality of the circumstances regarding the allegations set
forth by the appellant and the documents he submits into the record, we find that
he has not raised a nonfrivolous allegation that the provisional appointment set
forth in his SF-50 was incorrect and that he was subjected to an appealable
adverse action. See Scott, 113 M.S.P.R. 434, ¶ 8. The appellant’s bare,
conclusory statement that the agency altered his SF-50 to add a provisional
appointment only after he was terminated by his supervisor does not constitute
a nonfrivolous allegation that he had received a permanent competitive-service
appointment. IAF, Tab 1 at 5; PFR, Tab 1 at 19; see 5 C.F.R. § 1201.4(s).
He offers no support for this allegation and notably does not allege the existence
of a previous SF-50 or other appointment documentation that the HR
professionals were alleged to have altered. Although the appellant focuses on the
vacancy announcement that identified the position as permanent, by his own
acknowledgement, he did not apply for the vacancy announcement but instead
received a by-name direct offer from an agency HR professional after
he explained his prior position at another U.S. Army installation and presented
his qualifications. PFR File, Tab 1 at 19; IAF, Tab 1 at 5, 10, Tab 8 at 5-6.
¶15 None of the equitable considerations raised by the appellant relieve him of
his burden of proof regarding jurisdiction. The appellant’s argument that the
agency’s errors created a binding legal contract granting him a permanent
position and entitling him to due process rights is not a basis for finding Board
jurisdiction. PFR File, Tab 1 at 18-19. The Board has held in other
circumstances that an agency’s error cannot confer jurisdiction on the Board to
hear the merits of an appeal. See, e.g., LaBoube v. Department of the Treasury,
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105 M.S.P.R. 337, ¶8 (2007) (finding that the agency’s failure to provide accurate
information at the time of appointment about the require ment to serve a trial
period is no basis for waiving the requirement); Phillips v. Department of
Housing and Urban Development, 44 M.S.P.R. 48, 52 (1990) (finding that
an agency’s failure to inform an employee that she was required to serve a
probationary period until 11 months after she was appointed did not alter the
requirements that she complete a one-year probationary period that began on the
effective date of her appointment).
¶16 The appellant also repeats his argument on review that the agency failed to
comply with 5 C.F.R. § 316.403(a)(3) because the offer letters did not identify the
provisional appointment. PFR File, Tab 1 at 20; IAF, Tab 8 at 26. Under
5 C.F.R. § 316.403(a)(3), an agency designating an appointment as provisional
must state its intention to convert an appointment to a nontemporary appointment
under appropriate authority before the expiration of the temporary appointment,
must state this intention in any written offer of employment , and document this
intention as part of the permanent record of the initial appointment. Here,
although the agency included the provisional nature of the appointment in the
SF-50, the record supports the appellant’s allegation that it did not include the
necessary information in the offer letters. IAF, Tab 1 at 8-14, 16-17. However,
as noted by the administrative judge, the agency’s errors cannot confer Board
jurisdiction and do not demonstrate that the personnel action at issue was not the
expiration of a temporary appointment outside the scope of the Board’s
jurisdiction. ID at 5. The Board’s jurisdiction is established by statute or
regulation and cannot be waived by the Board for equitable considerations.
See Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 13-14 (1996).
¶17 Because the appellant has not raised nonfrivolous allegations that he was
subjected to a removal instead of the expiration of a temp orary appointment, it is
irrelevant whether he met the statutory definition of an employee under chapter
75. Scott, 113 M.S.P.R. 434, ¶ 9; Endermuhle, 89 M.S.P.R. 495, ¶ 9. Therefore,
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he is not entitled to a jurisdictional hearing, and the administrative judge properly
dismissed the appeal for lack of jurisdiction. See Ferdon, 60 M.S.P.R. at 329.
NOTICE OF APPEAL RIGHTS 2
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time 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 yo ur case by your
chosen forum.
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 c ase, 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).
2
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.
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If you submit a petition for review to the U.S. Court of Appeal s 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 t he 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
12
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
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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 Circuit or any court of appeals of
competent jurisdiction. 3 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).
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
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 we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3
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 b y 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 c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.