UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BAKARR BANGURA, DOCKET NUMBER
Appellant, PH-0752-15-0203-I-1
v.
SOCIAL SECURITY DATE: July 8, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Bakarr Bangura, Windsor Mill, Maryland, pro se.
Ellen Rothschild, Baltimore, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and authorities, 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 Effective May 18, 2014, the agency appointed the appellant to an excepted
service position as a Legal Administrative Specialist with its Office of Central
Operations. Initial Appeal File (IAF), Tab 1; see IAF, Tab 6 at 32-33. Before his
appointment, the agency informed the appellant that he must initially serve a
2-year trial period during which he may be separated at any time for poor
performance or misconduct. IAF, Tab 1 at 17; see IAF, Tab 6 at 32. On
January 9, 2015, the agency terminated the appellant for unacceptable
performance. IAF, Tab 1 at 28-29.
¶3 The appellant filed a timely appeal. IAF, Tab 1. The administrative judge
gave the appellant comprehensive notice of the elements and burdens he must
meet to be entitled to a jurisdictional hearing on his claim. IAF, Tabs 2, 4. After
considering the parties’ subsequent submissions, the administrative judge
dismissed the appeal for lack of jurisdiction, finding that the appellant failed to
make the requisite nonfrivolous allegation that he was an employee with appeal
rights to the Board. IAF, Tab 7, Initial Decision.
¶4 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
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Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Only an “employee” as
defined under 5 U.S.C. chapter 75, subchapter II, may appeal to the Board from
an adverse action such as a removal. E.g., Ramirez-Evans v. Department of
Veterans Affairs, 113 M.S.P.R. 297, ¶ 9 (2010); see 5 U.S.C. §§ 7511(a)(1),
7512(1), 7513(d). A nonpreference-eligible individual, like the appellant, in the
excepted service is an “employee” within the meaning of 5 U.S.C. § 7511 only if
he: (1) is not serving a probationary or trial period under an initial appointment
pending conversion to the competitive service; or (2) has completed 2 years of
current continuous service in the same or similar positions in an executive agency
under other than a temporary appointment limited to 2 years or less. 5 U.S.C.
§ 7511(a)(1)(C)(i)-(ii).
¶5 Because the appellant cannot meet this test, we find that the Board lacks
jurisdiction over his appeal. Moreover, because the agency terminated the
appellant for post-appointment reasons, he is not entitled to the procedures set
forth at 5 C.F.R. § 315.805. See 5 C.F.R. § 315.806(c). Lastly, in the absence of
an otherwise appealable action, the Board lacks jurisdiction over the appellant’s
disability discrimination claim. See Wren v. Department of the Army, 2 M.S.P.R.
1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) (prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.