Opinion

Richard Mokua v. Department of Justice

Court: Merit Systems Protection Board
Filed: Mar 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

holding that the appellant’s probationary period began when he reported for duty, not when he received the letter informing 3 him that he had been selected for the position and directing him to report for duty

How later courts described this case

holding that the appellant’s probationary period began when he reported for duty, not when he received the letter informing 3 him that he had been selected for the position and directing him to report for duty

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD A. MOKUA, DOCKET NUMBER

Appellant, CH-0752-22-0376-I-1

DEPARTMENT OF JUSTICE, DATE: March 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jerry Girley , Esquire, Orlando, Florida, for the appellant.

Amy Standefer-Malott , Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his alleged involuntary resignation appeal for lack of jurisdiction

because the appellant lacks Board appeal rights as a probationary employee with

less than 1 year of Federal service. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

¶2 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). If an appellant makes a

nonfrivolous allegation that the Board has jurisdiction over his appeal, the

appellant is entitled to a hearing on the jurisdictional question if he requests one.

Niemi v. Department of the Interior, 114 M.S.P.R. 143, ¶ 8 (2010). On review,

the appellant reasserts that he was not serving a probationary period at the time of

his June 10, 2022 resignation because (1) his probation began on May 20, 2021,

when he received notice from the agency of his appointment rather than on the

August 15, 2021 appointment date reflected in his Standard Form 52 (SF-52) and

(2) the agency told him that his probationary period was 90 days. Petition for

Review (PFR) File, Tab 1 at 5, 7; Initial Appeal File (IAF), Tab 11 at 6-7.

¶3 The Board has held that the calculation to determine an individual’s first

year of service begins on the date he entered duty. See Calixto v. Department of

Defense, 120 M.S.P.R. 557, ¶ 19 (2014); see also Hintz v. Department of Army,

21 F.3d 407, 410 & n.2 (Fed. Cir. 1994) (holding that the appellant’s probationary

period began when he reported for duty, not when he received the letter informing

him that he had been selected for the position and directing him to report for

duty). Here, the parties do not dispute that the appellant actually started work in

August 2021. 2 IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. In his sworn affidavit,

the appellant stated that the agency hired him in August 2021. IAF, Tab 7 at 10.

Additionally, the appellant has not alleged that he performed a Federal function

before his start date in August 2021. See Vandewall v. Department of

Transportation, 52 M.S.P.R. 150, 152-53 (1991) (holding that the appellant’s

probationary period began her first workday because she was not performing a

Federal function or supervised by a Federal official prior to that date).

¶4 In reviewing the appellant’s SF-52, the administrative judge noted that it

showed an appointment date of August 15, 2021, and that the appellant was

required to serve a 1-year probationary period that began on August 15, 2021.

IAF, Tab 13, Initial Decision (ID) at 5-6; IAF, Tab 9 at 55-56. However, the

administrative judge erroneously assessed that the SF-52 was “clearly

determinative” when it came to ascertaining the appointment date. ID at 5 (citing

Grisby v. Department of Commerce, 729 F.2d 772 (Fed. Cir. 1984) (citing

Goutos v. United States, 552 F.2d 922 (Ct. Cl. 1976)). In Grisby, the U.S. Court

of Appeals for the Federal Circuit clarified that an SF-50 and SF-52 are not

controlling of an employee’s status but rather they could be considered as

evidence. Grisby, 729 F.2d at 775-76. Thus, the appointment SF-52 submitted by

the agency in this matter is not “determinative” at this stage. Nevertheless, even

disregarding that document, we find that the appellant has not made a

nonfrivolous allegation that his probationary period began prior to his entry on

duty in August 2021 for the reasons set forth above in ¶ 3.

The appellant states he started work on August 16, 2021, while the agency states he

was hired on August 15, 2021. IAF, Tab 1 at 8, Tab 8 at 4, Tab 12 at 5. The SF-52

documenting his appointment listed the effective date as August 15, 2021, a Sunday.

IAF, Tab 9 at 55-56. The appellant appears to have reported for duty on Monday,

August 16, 2021. The distinction between these dates is immaterial to the outcome of

this appeal.

¶5 We have considered the appellant’s assertion that, at the time of his

appointment, the agency informed him that he would be placed in a trial or

probationary status for only 90 days. IAF, Tab 11 at 7; PFR File, Tab 1 at 7.

However, the appellant has not alleged any facts that would support a conclusion

that he was subject to a probationary period less than 1 year. See 5 C.F.R.

§ 1201.4(s) (defining “nonfrivolous allegation”); see also Calixto, 120 M.S.P.R.

557, ¶ 5 (noting that almost all first-time competitive service employees are

subject to a 1-year probationary or trial period before accruing adverse action

appeal rights to the Board). 3 Even if the agency misrepresented such information,

this would not be a basis for conferring jurisdiction on the Board to hear the

appeal on the merits. See Calixto, 120 M.S.P.R. 557, ¶ 17 n.6; Phillips v.

Department of Housing and Urban Development, 44 M.S.P.R. 48, 52 (1990).

¶6 Accordingly, we agree with the administrative judge’s conclusion that the

appellant did not make a nonfrivolous allegation that he was an “employee” with

adverse action appeal rights under 5 U.S.C. chapter 75. ID at 4, 7; see 5 U.S.C.

§§ 7511(a)(1)(A), 7512, 7513(d).

¶7 For the first time on review, the appellant states that he was threatened with

termination for preappointment reasons without proper procedures, which might

be a basis for jurisdiction under 5 C.F.R. § 315.806(c). PFR File, Tab 1 at 8-9.

However, he provides no factual allegations to support his bare assertion that his

proposed termination was based in whole or in part on conditions arising before

his appointment. Id.; ID at 7; IAF, Tab 7 at 10-11. We find no basis to disturb

the administrative judge’s conclusion that the appellant has not made a

nonfrivolous allegation of jurisdiction pursuant to 5 C.F.R. § 315.806(a)-(c).

¶8 On review, the appellant again claims that he was coerced into resigning

immediately due to alleged misleading and false statements by the agency.

PFR File, Tab 1 at 9-10. However, because the Board lacks jurisdiction for the

reasons already explained, we cannot decide the merits of these claims. ID at 8-9.

There is no dispute that the appellant had no prior Federal service. IAF, Tab 1 at 8.

¶9 Having considered the appellant’s petition for review, we affirm the initial

decision dismissing this appeal for lack of jurisdiction. We note, however, that

we do so without prejudice to the appellant, after exhausting his administrative

remedies with the Office of Special Counsel (OSC), timely filing a future

individual right of action (IRA) appeal should he wish to pursue a claim of

whistleblower reprisal. See 5 U.S.C. § 1221; 5 C.F.R. part 1209. In his initial

appeal, the appellant asserted, among other things, that he was retaliated against

for raising certain “concerns” with the Associate Warden and Warden in

December 2021. IAF, Tab 1 at 9. It does not appear that the appellant was

provided notice regarding how to establish jurisdiction over his claims as an IRA

appeal. See, e.g., Chambers v. Department of Homeland Security, 2022 MSPB 8,

¶ 14; 5 C.F.R. § 1209.2. Nevertheless, before pursuing an IRA appeal, the

appellant must first seek corrective action from OSC before seeking corrective

action from the Board. See Chambers, 2022 MSPB 8, ¶ 5 (quoting 5 U.S.C.

§ 1214(a)(3)). There is no indication that the appellant has done so here,

IAF, Tab 1 at 4, so there is no basis for finding IRA jurisdiction at this time.

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 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

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.

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.

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. 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