The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL P. SUMMERELL, DOCKET NUMBER
Appellant, DC-315H-18-0478-I-1
v.
DEPARTMENT OF VETERANS DATE: March 21, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Laura A. O’Reilly , Virginia Beach, Virginia, for the appellant.
David Scruggs , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s probationary termination appeal for lack of jurisdiction.
For the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
DISCUSSION OF ARGUMENTS ON REVIEW
On April 15, 2018, the appellant transferred from his Investigator position
at the Office of Personnel Management (OPM) to a Police Officer position at the
agency, the Department of Veterans Affairs. Initial Appeal File (IAF), Tab 6
at 18-20, Tab 7 at 8-9. The Standard Form (SF) 50 documenting his transfer to
the agency reflects that his appointment was subject to the successful completion
of a 1-year initial probationary period. IAF, Tab 6 at 18.
Effective April 23, 2018, the agency terminated the appellant from his position
during his probationary period due to lack of candor. Id. at 8-11.
The appellant appealed his termination to the Board. IAF, Tab 1.
The administrative judge notified him that the Board may not have jurisdiction
over his appeal because probationary employees in the competitive service who
have less than 1 year of current, continuous service under other than a temporary
appointment limited to 1 year or less have limited rights of appeal to the Board .
IAF, Tab 2 at 3. She apprised him of the ways in which he could establish
jurisdiction over his appeal and ordered him to file evidence and argument
amounting to a nonfrivolous allegation of jurisdiction. Id. at 3-6. In response,
the appellant argued that the Board had jurisdiction over his appeal because he
had more than 1 year current, continuous service based on his prior Federal
service. IAF, Tab 7. Without holding the appellant’s requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 10, Initial Decision (ID).
3
The appellant has filed a petition for review of the initial decision, the
agency has responded, and the appellant has replied. 2 Petition for Review (PFR)
File, Tabs 1, 3-4.
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). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets the definition of “employee” at 5 U.S.C.
§ 7511(a)(1) generally has the right to challenge his removal from Federal service
by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234, ¶ 9 (2011). To qualify as an “employee,” an individual in a
competitive-service position, like the appellant, must show either that he is not
serving a probationary period, 5 U.S.C. § 7511(a)(1)(A)(i), or that he has
completed 1 year of current, continuous service under an appointment other than
a temporary one limited to a year or less, 5 U.S.C. § 7511(a)(1)(A)(ii).
An individual may establish that he is a competitive-service “employee” under
either of these alternative definitions. McCormick v. Department of the
Air Force, 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).
Here, the administrative judge correctly found that the appellant did not
complete his 1-year probationary period because he had not served a full year
under his appointment and because he failed to show that he had prior service in
the same or similar line of work that could be “tacked on” to his current service
for purposes of completing the probationary period. ID at 5. However, as the
appellant argues on review, the administrative judge did not consider whether he
2
On April 17, 2023, the appellant requested leave to file an additional pleading.
Petition for Review (PFR) File, Tab 7. Other than a petition for review, cross petition,
responses, and reply, no additional pleadings are accepted on review unless the party
files a motion with the Clerk of the Board that describes the nature of and need for the
pleading, and obtains leave to file. See 5 C.F.R. § 1201.114(a)(5), (k). The appellant
alleges that he recently discovered evidence that shows that his appeal is not moot.
PFR File, Tab 7. This alleged new evidence does not change the outcome of the appeal
because, as set forth below, we find that the appeal is not moot. Thus, the appellant’s
request is denied.
4
met the alternative definition of a competitive -service “employee” with Board
appeal rights. PFR File, Tab 1 at 7.
Under section 7511(a)(1)(A)(ii), an individual in the competitive service
can show that, although he may be a probationer, he is an “employee” with
chapter 75 appeal rights because, immediately preceding the adverse action, he
had completed at least 1 year of current continuous service in the competitive
service without a break in Federal civilian employment of a workday.
Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010). This period of
service need not be performed in the same agency or in the same line of work.
Dade v. Department of Veterans Affairs, 101 M.S.P.R. 43, ¶ 10 (2005).
The record reflects that the appellant held a competitive-service
appointment at OPM from September 4, 2016, until he transferred to the agency
on April 15, 2018. IAF, Tab 7 at 8-14, Tab 6 at 18-20. In a sworn affidavit, he
attested that he worked for OPM on Friday, April 13, 2018, and that he reported
to work at the agency on Monday, April 16, 2018. IAF, Tab 7 at 8. The agency
does not dispute this timeline or argue that the appellant lacked 1 year of current,
continuous service without a break in Federal civilian employment of a workday.
IAF, Tabs 6, 8-9; PFR File, Tab 3. Thus, we find that the appellant has shown
that he had at least 1 year of current, continuous service prior to his termination
and that he met the definition of “employee” under section 7511(a)(1)(A)(ii).
Accordingly, the Board has jurisdiction over the appellant’s termination appeal.
On review, the agency argues that, even if the Board has jurisdiction over
this appeal, the matter is now moot because it rescinded the appellant’s
termination and processed the action as a resignation effective on the date that the
appellant planned to resign, April 28, 2018. PFR File, Tab 3 at 1, 7, 9. In
response, the appellant argues that the appeal is not moot because he has not
received back pay for the period between his termination on April 23, 2018, and
the date of his “resignation” on April 28, 2018. PFR File, Tab 4 at 4. He further
argues that he did not intend to resign. Id. at 4-5.
5
The Board may dismiss an appeal as moot if the appealable action is
cancelled or rescinded by the agency. Hess v. U.S. Postal Service, 123 M.S.P.R.
183, ¶ 5 (2016). For an appeal to be deemed moot, the agency’s rescission of the
appealed action must be complete, and the employee must be returned to the
status quo ante. Id. Status quo ante relief generally requires that the appellant be
placed back in his former position or in one substantially equivalent in scope and
status to his former position. Id. Status quo ante relief also requires that the
agency remove all references to the rescinded action and restore to the appellant
any lost back pay or benefits. Id.
Here, there is no evidence that the agency has paid back pay to the
appellant, removed references to his termination, or restored him to his former
position or to a substantially similar one. 3 Thus, the appeal is not moot.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. 4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
Although the agency argues that the appellant intended to resign, there is no evidence
that he did so before the effective date of his termination.
4
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.