Opinion

Andrew Rehman v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jun 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW B. REHMAN, DOCKET NUMBER

Appellant, DA-315H-20-0337-I-1

DEPARTMENT OF THE ARMY, DATE: June 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thomas F. Muther, Jr. , Esquire, Denver, Colorado, for the appellant.

Joseph P. Kinlin , Esquire, Fort Sam Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed his termination appeal for lack of jurisdiction. 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 interpretation of statute or regulation or the erroneous application of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

reasons set forth below, we VACATE the administrative judge’s finding that the

appellant’s service with the Department of the Air Force cannot count toward the

completion of his probationary period, and we AFFIRM the initial decision as

MODIFIED to clarify and supplement the administrative judge’s jurisdictional

analysis. Except as expressly indicated in this Final Order, the initial decision of

the administrative judge is the Board’s final decision.

On petition for review, the appellant reasserts his argument that he is an

“employee” with adverse action appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i)

because he can “tack on” his prior Federal civilian service with the agency to

complete his 2-year probationary period. Petition for Review File, Tab 1 at 6-8;

Initial Appeal File (IAF), Tab 7 at 5-7. For the following reasons, we modify the

initial decision to clarify and supplement the administrative judge’s analysis

regarding this jurisdictional issue.

The appellant made nonfrivolous allegations 2 that he performed the

following periods of Federal civilian service: (1) from July 24, 2017, through

July 7, 2018, he served over 11 months with the agency under a time-limited

appointment; (2) from July 8, 2018, through January 5, 2019, he served

approximately 6 months with the Department of the Air Force under a

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

career-conditional appointment (subject to the completion of a 2-year

probationary period beginning on July 8, 2018); and (3) from January 6, 2019,

until his termination on February 6, 2020, he served approximately 13 months

with the agency after being transferred from the Department of the Air Force.

IAF, Tab 7 at 8-13, Tab 10 at 29, 34-39, Tab 12, Initial Decision (ID) at 2.

Under 5 C.F.R. § 315.501, an agency may appoint by transfer to a

competitive service position, without a break in service of a single workday, a

current career or career-conditional employee of another agency. See Park v.

Department of Health and Human Services, 78 M.S.P.R. 527, 532 n.2 (1998).

Under 5 C.F.R. § 315.801(b), a person who is transferred under 5 C.F.R.

§ 315.501 before he has completed probation is required to complete the

probationary period in the new position. Park, 78 M.S.P.R. at 532 n.2. Here, the

Standard Form 50 documenting the appellant’s January 6, 2019 transfer from the

Department of the Air Force to the agency reflects that he was transferred under

5 C.F.R. § 315.501 and that his appointment was subject to the completion of the

2-year probationary period, beginning on July 8, 2018. IAF, Tab 7 at 13, Tab 10

at 34-35. Thus, we find that the appellant has made a nonfrivolous allegation that

he was transferred to the agency under 5 C.F.R. § 315.501 before he completed

his 2-year probationary period that began on July 8, 2018. We further find that,

under 5 C.F.R. § 315.801(b), such a transferee is required to complete his

probationary period with the agency after being transferred. Therefore, we vacate

the administrative judge’s finding that the appellant’s service with the

Department of the Air Force cannot count toward the completion of his

probationary period because it was not performed with the same agency. ID at 6.

Instead, we find that the appellant made nonfrivolous allegations that he

performed probationary service beginning with his July 8, 2018

career-conditional appointment to the Department of the Air Force, continuing

with his January 6, 2019 transfer to the agency, and ending with his February 6,

2020 termination from the agency. However, such probationary service of

approximately 19 months was insufficient to complete the 2-year probationary

period.

In addition, we modify the initial decision, as follows, to clarify and

supplement the administrative judge’s analysis regarding whether the appellant

can “tack on” his prior service with the agency to complete his probationary

period. Under 5 C.F.R. § 315.802(b), prior Federal civilian service counts toward

completion of probation when the prior service (1) is in the same agency, (2) is in

the same line of work, and (3) contains or is followed by no more than a single

break in service that does not exceed 30 calendar days. Here, it is clear that the

appellant could not have “tacked on” his prior service with the agency when he

first began his probationary period (upon his career-conditional appointment to

the Department of the Air Force) because his prior service was not performed in

the same agency. See, e.g., Francis v. Department of the Navy, 53 M.S.P.R. 545,

547-51 (1992) (finding that the appellant’s prior service in the Department of the

Army could not be credited toward the completion of the probationary period that

she had begun when she was appointed by the Department of the Navy). The

appellant has failed to provide, and we have not found, any legal authority or case

law to support the proposition that a subsequent event, such as his transfer to the

agency, could lead to a different result.

Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

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.

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).

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

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

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