The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT SPELTZ, DOCKET NUMBER
Appellant, SF-0752-22-0472-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 14, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Philip A. Gonzales , Reno, Nevada, for the appellant.
Douglas W. Hales , and Nancy Anderson Sinclair , Herlong, California, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal, finding that the agency failed to prove its
charge of Excessive Absence. For the reasons discussed below, we GRANT the
agency’s petition for review, VACATE the initial decision, and REMAND the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
case to the Western Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
The appellant was employed as a WG-6910-07 Materials Expediter at the
agency’s Sierra Army Depot in Herlong, California. Initial Appeal File (IAF),
Tab 27 at 4. The agency removed the appellant from his position effective
February 26, 2021, based on a charge of Excessive Absence for the appellant’s
absences from October 5 to November 2, 2020. IAF, Tab 7 at 46-64, 72. The
appellant timely filed an appeal with the Board, IAF, Tab 1, and requested a
hearing, id. at 2.
On appeal, the appellant alleged that the agency discriminated against him
on the basis of his disability when it removed him. Id. at 5. In its response, the
agency asserted that its removal decision was warranted and not the result of any
prohibited basis, and further indicated that the “[a]ppellant was an employee in
the competitive service as defined by 5 U.S.C. § 7511 at all times relevant to his
appeal.” IAF, Tab 7 at 7, 9. After implicitly finding that the Board had
jurisdiction over the appeal under chapter 75 and holding a hearing, the
administrative judge reversed the removal, finding that the agency did not prove
its Excessive Absence charge. IAF, Tab 29, Hearing Recording (HR), Tab 35,
Initial Decision (ID) at 1, 12-20, 26.
The agency has filed a petition for review of the initial decision. PFR File,
Tab 1. The appellant has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency asserts, for the first time on review, that the Board should
dismiss this appeal for lack of jurisdiction. PFR File, Tab 1 at 11. Specifically,
the agency contends that the Board lacks jurisdiction over the appellant’s appeal
because he is not an “employee” as defined by chapter 75. Id. at 9-11.
Generally, the Board will not consider a new argument on review absent a
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showing that it is based on new and material evidence that was not previously
available despite the party’s due diligence. Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016). However, we consider the agency’s new argument
because it implicates the Board’s jurisdiction, and the issue of jurisdiction is
always before the Board and may be raised by any party or sua sponte by the
Board at any time during Board proceedings. Lovoy v. Department of Health &
Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).
We remand the appeal for a determination of whether the Board has chapter 75
jurisdiction over the appellant’s removal appeal.
The Board’s jurisdiction is not plenary, and it is limited to 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). Whether an
individual in the competitive service has the right to appeal an adverse action
depends on whether he is an “employee” under 5 U.S.C. § 7511(a)(1)(A). Walker
v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).
Under 5 U.S.C. § 7511(a)(1)(A), an employee is an individual in the
competitive service (i) who is not serving a probationary or trial period under an
initial appointment, or (ii) who has completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less.
However, at the time of the appellant’s appointment to the Materials Expeditor
position, individuals appointed to a competitive-service position at the
Department of Defense were subject to a 2-year probationary period and only
qualified as an “employee” with chapter 75 appeal rights if they completed
2 years of current continuous service. 2 5 U.S.C. § 7511(a)(1)(A)(ii); 10 U.S.C.
2
Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016
NDAA) on November 25, 2015, Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA
extended the probationary period for an individual appointed to a permanent
competitive-service position at the Department of Defense to a 2-year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A)(ii) if he has completed 2 years of current continuous service.
Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified as relevant here at 10
U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense Authorization
4
§ 1599e(a), (b)(1)(A), (d) (repealed 2022); Bryant v. Department of the Army,
2022 MSPB 1, ¶ 8 & n.2.
A Department of Defense employee who has not served his full 2-year
appointment can show that he has completed the probationary period by tacking
on prior service if: (1) the prior service was rendered immediately preceding the
probationary appointment; (2) it was performed in the same agency; (3) it was
performed in the same line of work; and (4) it was completed with no more than
one break in service of less than 30 days. Hurston v. Department of the Army,
113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R. § 315.802(b). Alternatively, an individual
can show that, while he may be a probationer, he is an “employee” with chapter
75 appeals rights because, immediately preceding the adverse action at issue, he
had completed at least 2 years of current continuous service without a break in
Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9.
On review, the agency argues that the appellant did not meet his burden of
establishing that he was an “employee” because his removal on February 26,
2021, occurred less than a year after his appointment to the Materials Expeditor
position on June 7, 2020. PFR File, Tab 1 at 13. It also asserts that although the
appellant’s prior service with the agency as a Materials Handler immediately
preceded his June 2020 appointment without a break in service, he is unable to
tack on this service because the “positions are materially different and cannot be
considered to be in the same line of work.” Id. at 13-14. However, it is unclear
whether the appellant, albeit a probationer, could meet the definition of an
employee because he completed at least 2 years of current continuous service
without a break in Federal civilian employment of a workday.
Generally, an appellant has the burden of proving by preponderant evidence
that the Board has jurisdiction over his appeal, 5 C.F.R. § 1201.56(b)(2)(i)(A).
However, an appellant must receive explicit information on what is required to
Act for Fiscal Year 2022, enacted on December 27, 2021, repealed 10 U.S.C. § 1599e
and the 2-year probationary period, effective December 31, 2022. Pub. L. No. 117-81,
§ 1106, 135 Stat. 1541, 1950.
5
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Based on our review of the
record, we find that the appellant did not receive explicit information regarding
the jurisdictional standard to show that he qualifies as an “employee” with appeal
rights under 5 U.S.C. Chapter 75. 3 IAF, Tabs 2, 12, 27. Further, because the
agency did not dispute jurisdiction below, it deprived the appellant of the
opportunity to submit evidence and argument below in support of finding that he
was an “employee.” It also denied the administrative judge the ability to develop
the record and assess the relevant information concerning this significant issue.
We therefore find, in light of the evidence and argument submitted by the
agency, that this case should be remanded to allow the appellant to establish that
he is an “employee” as defined by chapter 75. On remand, the administrative
judge shall allow the parties to present additional evidence and argument relating
to the jurisdictional issue. If, on remand, the administrative judge finds that the
appellant has not established that he is an “employee” with chapter 75 appeal
rights, he shall issue a new initial decision dismissing the appeal for lack of
jurisdiction. If, however, he finds that the appellant is an “employee” and the
Board has jurisdiction over this appeal, the administrative judge may reiterate his
findings on the merits of the appellant’s removal in the new initial decision.
3
After the agency submitted its file, wherein it initially indicated that the appellant was
a chapter 75 employee, IAF, Tab 7 at 7, the appeal was reassigned to another
administrative judge, Tab 10. The appellant’s initial appeal also specifies that he had
over 14 years of service. IAF, Tab 1 at 1. Thus, it may not have been clear that this
jurisdictional issue needed to be addressed. Nevertheless, the agency’s apparent
concession of jurisdiction may not be dispositive. See Waldrop v. U.S. Postal Service,
72 M.S.P.R. 12, 15 (1996) (stating the Board, as a limited-jurisdiction tribunal, must
satisfy itself that it has authority to adjudicate the matter before it, and may raise the
question of its own jurisdiction sua sponte at any time).
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ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.