Opinion

Jacob McCauley v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Mar 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACOB HERRICK MCCAULEY, DOCKET NUMBER

Appellant, DC-3443-19-0478-I-1

DEPARTMENT OF THE INTERIOR, DATE: March 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jacob Herrick McCauley , Mechanicsville, Virginia, pro se.

Jessica L. Kersey , Esquire, Knoxville, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his removal appeal for lack of jurisdiction. For the reasons discussed

below, we GRANT the petition for review and REVERSE the initial decision.

The appellant’s removal is NOT SUSTAINED.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The material facts of this appeal are undisputed. On January 8, 2017, the

agency appointed the appellant, a non-preference eligible, to an excepted service

GS-05 Student Trainee (Maintenance Worker) position under the Pathways

Student Internship Program, pursuant to 5 C.F.R. § 213.3402(a). 2 Initial Appeal

File (IAF), Tab 5 at 11-12. This was an indefinite appointment, intended to

continue through the completion of the appellant’s education and work

requirements, and the agency had the option to noncompetitively convert the

appellant to a term or permanent competitive service position within 120 days

after he successfully completed all program requirements. Id. at 12; see 5 C.F.R.

§ 362.204(b) (setting forth the circumstances under which an agency may

noncompetitively convert an Intern to a term or permanent appointment in the

competitive service).

Effective April 5, 2019, the agency summarily separated the appellant from

service. IAF, Tab 1 at 7-8. The agency informed the appellant that it was

terminating his appointment due to a shift in programmatic priorities and because

he had not met the standards set forth in the Pathways agreement in the

performance of his work. Id. On April 30, 2019, the appellant filed a Board

appeal and requested a hearing. Id. at 1-3. He argued that the agency did not

allow him to respond to the reasons for his termination and that those reasons for

termination could not be substantiated. Id. at 5.

The administrative judge issued an order to show cause, informing the

appellant that the Board may not have jurisdiction over his appeal because he did

not appear to be an “employee” with Board appeal rights under 5 U.S.C.

The Pathways Program was established in 2010 by Executive Order 13562 to promote

employment opportunities for students and recent graduates in the Federal workplace

(Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010)). The Pathways Program

is the successor to the Federal Career Intern Program (FCIP) and was designed to

address the problems with the FCIP. See Exec. Order No. 13,562, 75 Fed. Reg. 82,585;

Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 10, aff’d in part, rev’d in part,

808 F.3d 497 (Fed. Cir. 2015).

chapter 75. IAF, Tab 4. The appellant did not file a response to the order. The

agency moved to dismiss the appeal for lack of jurisdiction, arguing that

the appellant did not satisfy the definition of “employee” under 5 U.S.C.

§ 7511(a)(1). IAF, Tab 5.

After the record on jurisdiction closed, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial

Decision (ID) at 4. The administrative judge found that, because the appellant’s

appointment under the Pathways program was a temporary appointment, he was

not an “employee” with Board appeal rights under 5 U.S.C. chapter 75. ID at 4.

Alternatively, the administrative judge found that, even if the appellant were an

“employee” for purposes of Board jurisdiction, he had not suffered an appealable

adverse action when the agency failed to convert him to a term or permanent

competitive service position at the end of his trial period. ID at 3-4.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has not filed a response.

ANALYSIS

On review, the appellant argues that he qualifies as an “employee” with

Board appeal rights under 5 U.S.C. § 7511(a)(1)(C), which defines as an

employee an individual in the excepted service, other than a preference eligible,

who has completed 2 years of current continuous service in the same or similar

positions in an Executive agency under other than a temporary appointment

limited to 2 years or less. PFR File, Tab 1 at 4. He argues that, based on the fact

that his appointment length was indefinite, and thus not one “limited to 2 years or

less,” and the fact that he continuously worked in his position for over 2 years, he

qualifies as an employee under this provision. Id.; IAF, Tab 5 at 12. The

appellant further argues that the administrative judge mischaracterized the nature

of his appeal, clarifying that he was not challenging the agency’s failure to

convert him to a permanent position, but was instead challenging the agency’s

failure to offer him predecisional due process. PFR File, Tab 1 at 4.

The appellant was an employee with chapter 75 appeal rights at the time of his

termination.

An individual who is involuntarily separated for cause is entitled to appeal

to the Board under 5 U.S.C. §§ 7512(1) and 7513(d) if he meets the definition of

“employee” under 5 U.S.C. § 7511(a)(1). Yeressian v. Department of the Army,

112 M.S.P.R. 21, ¶ 8 (2009). As a non-preference eligible in the excepted

service, to be entitled to Board appeal rights the appellant had to satisfy the

definition of “employee” under 5 U.S.C. § 7511(a)(1)(C), which is defined as an

individual:

(i) who is not serving a probationary or trial period under an initial

appointment pending conversion to the competitive service; or

(ii) who has completed 2 years of current continuous service in the

same or similar positions in an Executive agency under other than a

temporary appointment limited to 2 years or less.

The appellant need only satisfy the requirements under (C)(i) or (C)(ii) in order to

be an employee with adverse action appeal rights. Van Wersch v. Department of

Health and Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999); Yeressian,

112 M.S.P.R. 21, ¶ 8.

In Van Wersch, the U.S. Court of Appeals for the Federal Circuit held that,

although the petitioner was serving a probationary period under a temporary

excepted service appointment pending conversion to the competitive service and

did not satisfy the requirements under subsection (C)(i), she satisfied the

requirements under subsection (C)(ii) because she had completed 2 years and

8 months of current continuous service in the same position in an Executive

agency. Therefore, she was an “employee” within the meaning of 5 U.S.C.

§ 7511(a)1)(C). Van Wersch, 197 F.3d at 1146, 1148. Similarly, in Beck v.

General Services Administration, 86 M.S.P.R. 489, ¶¶ 2, 11 (2000), the Board

found that an individual who was appointed to a Student Trainee position

pursuant to 5 C.F.R. § 213.3202, whose appointment was intended to continue

through completion of her education and study-related work requirements, and

who served more than 2 years of current continuous service in the same position,

met the statutory definition of an “employee” under subsection (C)(ii).

In this case, although the appellant was serving in a trial period under an

initial appointment pending conversion to the competitive service, he had served

more than 2 years in that position at the time of his separation. IAF, Tab 1 at 7,

Tab 5 at 11-12; see 5 C.F.R. §§ 213.3402(b)(1), 362.204(a). Therefore, although

the appellant did not meet the definition of “employee” under 5 U.S.C. § 7511(a)

(1)(C)(i), he met the alternative definition of “employee” under 5 U.S.C.

§ 7511(a)(1)(C)(ii). See Van Wersch, 179 F.3d at 1148; Beck, 86 M.S.P.R. 489,

¶ 11.

This finding is consistent with the Office of Personnel Management’s

(OPM) Pathways Programs Handbook, which provides guidance for agencies on

how to implement the Pathways Program and sets out specific requirements to

which agencies must adhere in administering the program. 3 See Pathways

Programs Handbook, U.S. Office of Personnel Management (Aug. 2016),

available at https://www.pmf.gov/media/5544619/opm-pathways-programs-

handbook-08-2016.pdf. In the section of the Handbook addressing terminations,

OPM notes that a termination based on the expiration of an internship

appointment is not effected under 5 U.S.C. chapter 75, and the Intern does not

have Board appeal rights. Pathways Programs Handbook at 25. However, OPM

also notes that if an Intern is terminated at any time prior to completion of the

designated appointment, “agencies must determine whether the action should be

While OPM Guides and Handbooks lack the force of law, the Board has held that they

are entitled to deference in proportion to their power to persuade. See Warren v.

Department of Transportation, 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM

retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of

Personnel Management, 110 M.S.P.R. 667, ¶ 9 n.3 (2009) (granting “some deference”

to an OPM retirement handbook). Here, we find that OPM’s handbook is persuasive for

identifying the requirements agencies must meet in implementing the Pathways

Program.

processed in accordance with [] 5 U.S.C. [c]hapter 75, and the Intern . . . may be

given appeal rights.” Id. at 26. Continuing, the Handbook states that chapter 75

appeal rights “will be based on whether the Intern [] meets the definition of

‘employee’ as set forth in [] 5 U.S.C. [§] 7511.” The Handbook makes clear that

if an Intern meets the definition of “employee” under 5 U.S.C. chapter 75, then he

“may have the right to appeal the balance of the remainder of the appointment,”

and “adverse action procedures outlined in [5 C.F.R. § 752] will apply to the

action.” Id. Absent a specific exclusion of appeal rights or an exemption from

section 7511’s definition of an “employee,” a civil service position is not exempt

from the protections found in chapter 75, including the right to appeal an adverse

action to the Board. See Lal v. Merit Systems Protection Board, 821 F.3d 1376,

1379-80 (2016); Malloy v. Department of State, 2022 MSPB 14, ¶¶ 11-12.

The appellant’s separation from service constituted a removal within the meaning

of 5 U.S.C. § 7512(1).

As noted above, the administrative judge found that, even if the appellant

were an employee with chapter 75 appeal rights, his separation from service did

not constitute an adverse action because failure to convert an individual at the

conclusion of a term appointment does not constitute a removal under 5 U.S.C.

§ 7512(1). ID at 3-4. It is well established that termination of an appointment on

the expiration date specified as a basic condition of employment at the time the

appointment was made does not constitute an adverse action appealable under

chapter 75. Berger v. Department of Commerce, 3 M.S.P.R. 198, 199-200 (1980);

5 C.F.R. § 752.401(b)(11). However, there is no evidence that the appellant in

this case was serving in a temporary or term appointment with a defined end date.

Instead, he was serving under an indefinite appointment, i.e., a nonpermanent

appointment without a definite time limitation. IAF, Tab 1 at 12, 14; see 5 C.F.R.

§ 362.203(d)(3) (providing for two types of Pathways Intern appointments–

temporary appointments not to exceed one year, and indefinite appointments that

are “not required to have an end date” ). 4 Because the appellant’s appointment

did not have an end date specified, we find that his involuntary separation from

service did not fall within the exception of 5 C.F.R. § 752.401(b)(11).

Furthermore, the documentation surrounding the agency’s action shows

unequivocally that the appellant’s separation was for cause rather than pursuant to

the expiration of his appointment. In its notice of termination, the agency

explained to the appellant the reasons for his separation from service as follows:

“A change in programmatic priorities has shifted the need for your position. In

addition, you have not met the standards set forth in the Pathways agreement in

the performance of your work.” IAF, Tab 1 at 8. Similarly, the Standard

Form 50 (SF-50) documenting the appellant’s separation states that the reason for

the action was a “change in programmatic priorities.” Id. at 7. The agency has

endorsed this explanation on appeal. IAF, Tab 5 at 5. Nowhere has the agency

even suggested that the appellant might have been separated pursuant to the

expiration of his appointment.

We further observe that the SF-50 cites 5 C.F.R. § 362.105(h) as the

authority for the appellant’s termination. IAF, Tab 1 at 7. That paragraph

Even if an Intern appointment does not have an end date, OPM’s regulations require

the employing agency “to specify an end date of the appointment in the Participant

Agreement with the Intern.” 5 C.F.R. § 362.203(d)(3)(i). Neither party in this case

submitted the appellant’s Participant Agreement for the record, so we are unable to

determine what, if any, end date was specified in that agreement. However, we find

that the provisions of any such agreement would be immaterial to the analysis. Nothing

in the Participant Agreement could serve to alter the nature of the appellant’s

appointment or change the fact that the appointment itself had no definite time

limitation. “Federal employment is not governed by contract principles. In the federal

personnel system, employees are appointed to positions, with their terms of

employment being specified primarily in position descriptions. Appointment, not

contract law, is the central concept.” Bartel v. Federal Aviation Administration,

14 M.S.P.R. 24, 35-36 (1982), aff'd as modified, 30 M.S.P.R. 451 (1986). “Absent

specific legislation, Federal employees derive the benefits and emoluments of their

positions from appointment rather than from a contractual or quasi-contractual

relationship with the government, even where compacts have been made between

employees and their agencies.” Walton v. Department of the Navy, 42 M.S.P.R. 244,

250 n.14 (1989).

provides as follows: “An agency may terminate a Pathways Participant for

reasons including misconduct, poor performance, or suitability under the

provisions of this chapter.” 5 C.F.R. § 362.105(h). Had the appellant been

terminated pursuant to the expiration of his appointment, the applicable

regulatory authority would have been 5 C.F.R. § 362.205(b).

For these reasons, we find no dispute of material fact about the nature of

the appellant’s separation. The record shows that, like the appellant in

McCrary v. Department of the Army, 103 M.S.P.R. 266, ¶¶ 2, 9, 15 (2006), the

appellant in this case was separated for cause during his internship, and as an

employee within the meaning of 5 U.S.C. § 7511(a)(1)(C)(ii), was subjected to an

appealable adverse action, i.e., a removal under 5 U.S.C. § 7512(1). This appeal

is unlike Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶¶ 3, 10

(2010) in which the appellant, although an employee with adverse action appeal

rights, was separated pursuant to the expiration of his appointment and therefore

not subjected to an adverse action appealable under chapter 75.

The agency removed the appellant without due process.

The essential requirements of procedural due process are prior notice of the

reasons for the adverse action and an opportunity to respond. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985). In this case, the record

shows that the appellant did not receive any prior notice whatsoever of the

reasons for his separation, and consequently had no opportunity to respond. IAF,

Tab 1 at 5, 7-8, Tab 5 at 5. Because the agency’s procedures for effecting the

appellant’s removal did not comport with his constitutional right to minimum due

process, the agency’s action is not sustained. See Sandoval v. Department of

Agriculture, 115 M.S.P.R. 71, ¶ 15 (2010).

ORDER

We ORDER the agency to CANCEL the appellant’s removal and

RESTORE him to his position effective April 5, 2019. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

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 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. 420 (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 Circuit or any court of appeals of

competent jurisdiction. 6 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