NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3264
CLARA A. ALVAREZ,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Clara A. Alvarez, of Freedom, Maine, pro se.
Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3264
CLARA A. ALVAREZ,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0731070553-I-1
and PH315H070436-I-1.
___________________________
DECIDED: November 6, 2008
___________________________
Before BRYSON and DYK, Circuit Judges, and PATEL, District Judge. *
PER CURIAM.
DECISION
Clara A. Alvarez petitions for review of a decision of the Merit Systems Protection
Board dismissing her appeal from her removal from employment with the Department of
the Treasury. We affirm.
∗ The Honorable Marilyn Hall Patel, District Judge, United States District Court for
the Northern District of California, sitting by designation.
BACKGROUND
Ms. Alvarez was hired on May 30, 2006, to the position of Revenue Officer with
the Internal Revenue Service (“IRS”). Her appointment was subject to the completion of
a one-year probationary period with the agency and a limited background investigation.
The background investigation revealed, among other things, that prior to her
employment with the agency, while she was working for the State of Maine as a Tax
Examiner, Ms. Alvarez had been suspended from duty for inappropriately accessing
state and federal tax information. Following the background investigation, Ms. Alvarez
was notified, on May 7, 2007, that she would be terminated during her probationary
period for “conduct unbecoming or not suitable for IRS employment.” She was advised
that she had seven calendar days from receipt to provide a written reply to the letter.
She received a copy of the background investigation report on May 10, 2007, and
submitted a timely written reply to the agency’s letter on May 14, 2007. On May 22,
2007, Ms. Alvarez’s employment with the agency was terminated, effective May 24,
2007.
Ms. Alvarez filed two appeals with the Merit Systems Protection Board
challenging the agency’s decision to terminate her employment. The appeals were
consolidated and the administrative judge assigned to the case conducted a hearing.
Following the hearing, the administrative judge dismissed the appeals on the ground
that the Board lacked jurisdiction over Ms. Alvarez’s termination. The administrative
judge rejected Ms. Alvarez’s assertion that the Board could assert jurisdiction on the
ground that she had been terminated based on an unsuitability determination pursuant
to 5 C.F.R. § 731 (2007). Instead, the administrative judge concluded that Ms. Alvarez
2008-3264 2
had been terminated under 5 C.F.R. § 315 (2007) for conduct based in whole or in part
on conditions arising before her appointment. The administrative judge then considered
whether Ms. Alvarez had been afforded the procedural safeguards of 5 C.F.R. §
315.805 (2007), which are applicable to probationary employees who are terminated for
conduct based in part on pre-appointment conditions. Finding that Ms. Alvarez had
been granted her procedural rights, the administrative judge dismissed the appeals.
After the full Board denied Ms. Alvarez’s petition for review, she petitioned for review by
this court.
DISCUSSION
When a competitive service employee is terminated during a probationary period,
the employee enjoys no statutory right of appeal to the Merit Systems Protection Board.
See 5 U.S.C. §§ 4303(f)(2), 7511(a)(1)(A)(i). Although probationary employees have a
right to appeal pursuant to OPM regulation, that right is available in only a few
circumstances. See 5 C.F.R. § 315.806 (2007). One of those circumstances is when a
probationary employee claims that the termination was based in whole or in part on
conditions arising before appointment. In such a case, the employee’s appeal is limited
to whether the termination was effected in accordance with the procedural requirements
of 5 C.F.R. § 315.805 (2007). See id. § 315.806(c) (2007).
With respect to the issue raised in her first appeal, Ms. Alvarez argues that she
was not afforded the protections of section 315.805 of the OPM regulations when she
was removed from employment during her probationary period. Section 315.805
provides that a probationary employee who is subject to termination based in whole or
in part on conditions arising before his or her appointment is entitled to (1) “an advance
2008-3264 3
written notice stating the reasons, specifically and in detail, for the proposed action,” (2)
“a reasonable time for filing a written answer to the notice of proposed adverse action
and for furnishing affidavits in support of [that] answer,” and (3) notice of any adverse
decision and the employee’s appeal rights.
The administrative judge found that Ms. Alvarez was given advance written
notice of the proposed termination on May 7, 2007, and was given seven days within
which to respond. Although the regulations do not define “reasonable time,” the
administrative judge looked to the amount of time a non-probationary employee is given
to answer the agency’s charges. Under 5 U.S.C. § 7513(b)(2), such an employee is
entitled to “a reasonable time, but not less than 7 days” within which to respond.
Because Ms. Alvarez was allowed seven days to respond to the notice of proposed
adverse action, the administrative judge concluded that the amount of time given to Ms.
Alvarez was reasonable.
While Ms. Alvarez was given seven days to respond to the termination notice, the
record reflects that she did not receive a copy of the background investigation report
detailing the allegations against her until May 10, 2007. Thus, she had only four days
from the receipt of the report to file her written answer. Although the administrative
judge did not address the adequacy of a four-day notice period, he found that even if
the agency should have granted Ms. Alvarez’s request for additional time to respond,
she failed to show that any error in that regard was prejudicial. In light of the highly
factual nature of those determinations and the administrative judge’s detailed analysis
of the prejudice issue, we uphold the administrative judge’s ruling.
2008-3264 4
In particular, the administrative judge found that even if Ms. Alvarez should have
been given more time for her response, the error was harmless in light of the fact that
Ms. Alvarez filed a thorough response to the notice within the allotted time and failed to
show that the short response time prejudiced her. Ms. Alvarez testified before the
administrative judge that if she had had more time she would have responded to
derogatory allegations made by a former supervisor and would have provided
statements from co-workers at her former job. The administrative judge noted,
however, that she did respond to the derogatory allegations by providing copies of
performance appraisals she received from her former supervisor and found that Ms.
Alvarez had not shown that her co-workers’ statements would likely have led the agency
to reach a different conclusion. Because Ms. Alvarez has not made a persuasive
showing that the administrative judge erred in reaching those conclusions as to the
questions of procedural error and the absence of prejudice, we sustain the Board’s
ruling on the procedural protection issue. 1
With respect to her second appeal, Ms. Alvarez argues that the agency did not
terminate her employment under the authority of section 315.805 of the OPM
regulations, but instead acted pursuant to an adverse suitability determination under
part 731 of the OPM regulations. Because an employee in the competitive service who
is terminated as a result of being found unsuitable for employment in a suitability
determination may appeal that determination to the Board, see 5 C.F.R. § 731.501
1
Although the administrative judge dismissed the appeal relating to the asserted
procedural error, we believe the Board’s order should have affirmed, rather than
dismissed, the appeal, as the Board had jurisdiction under 5 C.F.R. § 315.806 (2007) to
address the asserted procedural error; the Board’s ruling against Ms. Alvarez was
based on its determination that she was not entitled to relief on the merits of that claim.
2008-3264 5
(2007), Ms. Alvarez contends that the Board had jurisdiction over her appeal on that
ground.
Ms. Alvarez does not dispute the agency’s authority to terminate probationary
employees for conditions arising before appointment. The OPM regulations make clear
that a suitability determination under part 731 is distinct from an agency action under
part 315, and part 731 specifically provides that “[w]here behavior covered by this part
may also form the basis for a part 752 [adverse actions for non-probationary
employees] or 315 action, agencies may use part 315 or 752, as appropriate, instead of
this part.” 5 C.F.R. § 731.203(d) (2007). Ms. Alvarez argues that the agency conducted
what she terms a “constructive suitability determination.” Contrary to Ms. Alvarez’s
argument, the administrative judge found that the IRS had terminated Ms. Alvarez’s
employment under the authority of section 315.805 of the OPM regulations for
conditions arising before appointment, and that the agency did not conduct a
“constructive” suitability determination.
Ms. Alvarez bolsters her argument that the agency’s action was a constructive
suitability determination by pointing to a provision of the Internal Revenue Manual that
states “an investigation that yields adverse or derogatory information about an applicant
or an employee requires a suitability determination.” Internal Revenue Manual
§ 6.731.1.5. She suggests that the Manual provision required that the agency conduct
a suitability determination in her case and thus supports her contention that the agency
did just that.
We do not find the Manual provision persuasive on this issue. The provision in
question is located in a portion of the Manual that deals specifically with suitability
2008-3264 6
determinations; it indicates that if an investigation yields adverse information about an
employee or applicant, a suitability determination should be conducted. The provision
does not, however, have the effect of depriving the agency of its authority under the
OPM regulations to terminate probationary employees for conditions arising prior to
employment, and there is no indication that it was intended to narrow the agency’s
options in such cases.
To determine whether the agency’s action in this case was a suitability
determination, the administrative judge weighed the evidence on both sides. In favor of
Ms. Alvarez’s argument, the administrative judge recognized that the form authorizing
her background investigation referred to “Part 731,” and that her termination notice used
the words “not suitable.” The administrative judge acknowledged that those references
“could be deemed to implicate” section 731. On the other hand, the administrative
judge noted that “[a]ll of the agency officials who testified stated that the decision to
terminate the appellant was not a suitability determination,” and that a supervisor
testified that “her decision to terminate the appellant was primarily based on the
appellant’s prior conduct during her employment with the State of Maine.” The
administrative judge also relied on the language of the actual request that Ms. Alvarez
be terminated and the proposed termination notice itself. The request that she be
terminated referred to “ERG 315.804,” and the notice stated, “[t]his is a notice of
proposed termination issued in accordance with Part 315.805 of the Office of Personnel
Management regulations.” On balance, the administrative judge decided that the
evidence established that the agency terminated Ms. Alvarez under 5 C.F.R. § 315 and
thus that the Board lacked jurisdiction to review the agency’s decision as a suitability
2008-3264 7
determination. We uphold that finding as supported by substantial evidence and
therefore sustain the Board’s ruling dismissing Ms. Alvarez’s “suitability determination”
appeal.
2008-3264 8