Opinion

Brian Nelson v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIAN R. NELSON, DOCKET NUMBER

Appellant, DE-315H-21-0119-I-1

DEPARTMENT OF THE ARMY, DATE: April 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Aaron J. Gragg , Fort Huachuca, Arizona, for the appellant.

Richard C. Wolfe , Esquire, Fort Huachuca, Arizona, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his probationary termination appeal for lack of jurisdiction. On

petition for review, the appellant argues that he has new evidence showing that he

finished his initial probationary period before the agency terminated him.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an erroneous 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).

As noted above, the appellant claims he has new evidence that he received

from the agency on or about May 26, 2021, and he asserts that it was not

available to him, despite his due diligence, before the close of the record below.

Petition for Review File, Tab 2 at 5, 9. He argues that the new evidence, a

Standard Form 50 (SF-50) dated April 22, 2020, states that he completed his

initial probationary period. Id. at 7, 9. However, with its motion to dismiss the

appeal filed below, the agency attached a copy of the same document and it

explained that the document was issued in error because the appellant had only

completed 1 year of the 2-year initial probationary period statutorily required by

10 U.S.C. § 1599e (repealed 2022). 2 Initial Appeal File (IAF), Tab 9 at 4-5, 11.

At the time of the appellant’s appointment to his position, individuals appointed to a

permanent competitive-service position at the Department of Defense (DOD), such as

the appellant, were subject to a 2-year probationary period and only qualified as

“employees” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) if they completed 2 years of

current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016). As found by

the administrative judge, the appellant had not completed 2 years of service at the time

of his termination. On December 27, 2021, President Biden signed into law the

National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L.

No. 117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2-year probationary period

for DOD appointments made on or after December 31, 2022, and replaced it with a

1-year probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950. That

Similarly, the SF-50 for the appellant’s April 2019 appointment states that the

position is subject to a 2-year initial probationary period, but also states that the

appellant will be changed from tenure group 2 to tenure group 1 after he

completes a 1-year probationary period. IAF, Tab 4 at 14, Tab 9 at 8. However,

the Board has long held that an SF-50 is not a legally operative document

controlling on its face as to an employee’s status and rights. Stoute v.

Department of the Navy, 98 M.S.P.R. 409, ¶ 13 (2005) (citing Grigsby v.

Department of Commerce, 729 F.2d 772, 776 (Fed. Cir. 1984)). Thus, even

though the record does not reflect that the agency issued a corrected SF-50

reflecting that the appellant had not completed his initial probationary period, the

2-year initial probationary period here was a statutory requirement under

10 U.S.C. § 1599e (repealed 2022), which the issuance of an erroneous SF-50

does not change. Id.

The initial decision indicates that the administrative judge considered this

evidence, and that he correctly found that, because the appellant was appointed

after November 26, 2015, to a permanent position in the competitive service

within the Department of Defense, and had not completed the 2-year initial

probationary period required by 10 U.S.C. § 1599e (repealed 2022), he was not an

employee with appeal rights under 5 U.S.C. chapter 75. IAF, Tab 17, Initial

Decision (ID) at 2.

It is undisputed that the agency appointed the appellant to a position in the

competitive service on April 22, 2019, and terminated him less than 2 years later,

on January 21, 2021. IAF, Tab 1 at 6-8. Moreover, that appointment was

specifically made subject to a statutorily required 2-year initial probationary

period beginning on April 22, 2019. Id. at 8; see 10 U.S.C. § 1599e (repealed

2022). As the administrative judge observed, the appellant did not allege that his

termination was based on partisan political reasons or marital status. ID at 7. He

also observed that the appellant did not allege that his termination was based on

change does not affect the outcome of this appeal.

reasons arising in whole or in part before his appointment, so the agency was not

required to effect the appellant’s termination in accordance with the procedural

requirements of 5 C.F.R. § 315.805. ID at 7-8. Thus, we agree with the

administrative judge that the appellant identified no statutory or regulatory basis

for jurisdiction over the appeal.

NOTICE OF APPEAL RIGHTS 3

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.

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).

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.

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. 4 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