UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEAN THAP, DOCKET NUMBER
Appellant, DE-3443-16-0037-I-1
v.
SOCIAL SECURITY DATE: June 24, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steve Aman, San Tan Valley, Arizona, for the appellant.
Lara A. Bradt, Esquire, San Francisco, California, 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 his termination 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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. Except as
expressly MODIFIED by this Final Order to supplement the administrative
judge’s jurisdictional analysis and clarify the basis for finding that the Board
lacks jurisdiction over the appeal, we AFFIRM the initial decision.
BACKGROUND
¶2 Effective July 27, 2014, the agency appointed the nonpreference-eligible
appellant to an excepted service Claims Representative position under the
Pathways Recent Graduates Program (the Recent Graduates Program), pursuant
to 5 C.F.R. § 213.3402(b). 2 Initial Appeal File (IAF), Tab 4 at 42. The
appointment was not to exceed 2 years, with the potential for an agency-approved
extension of up to 120 days, and the entire duration of the appointment was a trial
period. Id.; see 5 C.F.R. § 362.303(f) (providing that the duration of a Recent
Graduates appointment in the excepted service is a trial period). The agency had
the option to noncompetitively convert the appellant to a permanent position upon
satisfactory completion of the Recent Graduates Program. IAF, Tab 4 at
42; 5 C.F.R. § 362.305(a) (setting forth the circumstances under which an agency
2
The Pathways Programs are authorized under Executive Order 13,562, and are an
exception to the competitive hiring rules for certain positions in the Federal civil
service. See Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010).
3
may noncompetitively convert a Recent Graduate to a competitive service term or
permanent position). However, on September 24, 2015, approximately 1 year and
2 months after his appointment, the agency terminated the appellant during his
trial period based on alleged unsatisfactory performance and attendance issues.
IAF, Tab 1 at 8, Tab 4 at 38.
¶3 The appellant filed a timely Board appeal, in which he challenged the merits
of his termination, and requested a hearing. IAF, Tab 1 at 2, 4, 6. In an
acknowledgment order, the administrative judge informed the appellant that the
Board may not have jurisdiction over the appeal, and notified the appellant of the
requirements for establishing that he was an “employee” with 5 U.S.C. chapter 75
appeal rights. IAF, Tab 2 at 2–5. The order directed the appellant to file
evidence or argument raising a nonfrivolous allegation of jurisdiction over his
appeal within 15 days. Id. at 5. The appellant failed to respond to the order, or to
the agency’s motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 4
at 6-9.
¶4 Thereafter, without holding the appellant’s requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 5, Initial Decision (ID). He found that, in failing to
submit evidence and argument in support of jurisdiction, the appellant conceded
that he could not establish jurisdiction over the appeal. ID at 3.
¶5 The appellant has filed a petition for review of the initial decision, and the
agency has opposed the petition for review. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 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
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant who makes a
nonfrivolous allegation of jurisdiction is entitled to a hearing at which he must
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then prove jurisdiction by a preponderance of the evidence. Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
banc); see 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7 Although not raised by the appellant on review, we find that the
administrative judge erred in dismissing the appeal for lack of jurisdiction based
on the appellant’s “concession” in failing to respond to the acknowledgment
order, without any further analysis of whether the appellant raised a nonfrivolous
allegation of jurisdiction over the appeal. ID at 3. In so doing, the administrative
judge cited Hubbard v. Merit Systems Protection Board, 605 F.3d 1363, 1365
(Fed. Cir. 2010), a decision addressing whether an appellant established that her
appeal was timely filed or that good cause existed for her filing delay. Here,
however, the pertinent issue is jurisdiction, rather than timeliness, and a finding
of jurisdiction, or a lack thereof, is a legal conclusion that is not subject to
stipulation or concession by the parties. See Roche v. Department of
Transportation, 110 M.S.P.R. 286, ¶ 11 (2008) (finding that an agency’s assertion
that the Board had jurisdiction over an appeal did not relieve the Board of the
responsibility of making its own determination on the subject), aff’d, 596 F.3d
1375 (Fed. Cir. 2010); McCarty v. Environmental Protection Agency, 108
M.S.P.R. 45, ¶ 10 (2008) (finding that an agency’s concession that the Board had
jurisdiction over an appeal had no legal effect because a finding of jurisdiction is
a legal conclusion not subject to stipulation by the parties); see also Ney v.
Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (finding that the issue of
the Board’s jurisdiction is always before the Board, and it may be raised by either
party or sua sponte by the Board at any time).
¶8 However, we find that the administrative judge’s error was not prejudicial
to the appellant’s substantive rights, because based on our review of the parties’
submissions below and on review, the appellant failed to raise a nonfrivolous
allegation of jurisdiction over his appeal. Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
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prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
¶9 As a nonpreference eligible in the excepted service, the appellant was
entitled to appeal to the Board if, at the time of his termination, he was an
“employee” under 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of
Homeland Security, 118 M.S.P.R. 154, ¶ 5 (2012); Ellefson v. Department of the
Army, 98 M.S.P.R. 191, ¶ 8 (2005). That section defines an employee as an
individual who (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).
¶10 We find that the appellant failed to raise a nonfrivolous allegation that he is
an employee under 5 U.S.C. § 7511(a)(1)(C)(i), because even assuming that he
was serving under an initial appointment pending conversion to the competitive
service, he failed to nonfrivolously allege that he was not serving a trial period at
the time of his termination. See Martinez, 118 M.S.P.R. 154, ¶ 6. The agency
terminated the appellant after approximately 1 year and 2 months of his Recent
Graduates Program appointment of up to 2 years and 120 days, the entire duration
of which was a trial period. IAF, Tab 4 at 38, 42, Tab 1 at 8. Furthermore, the
appellant failed to nonfrivolously allege, either below on review, that he had prior
service that could be tacked on to his Recent Graduates Program service so as to
complete his trial period. IAF, Tab 1; PFR File, Tab 1; see McCrary v.
Department of the Army, 103 M.S.P.R. 266, ¶¶ 9-15 (2006) (finding that an
individual whose excepted service Federal Career Intern Program appointment
was terminated during its 2-year trial period had appeal rights under
section 7511(a)(1)(C)(i) because she was entitled to credit toward completion of
the trial period based on her prior service).
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¶11 Likewise, based on our review, the record does not indicate that the
appellant had prior service that could be tacked on to complete his trial period.
An individual’s prior service may be tacked toward the completion of a trial
period in the excepted service where the prior service was: (1) performed in the
same agency; (2) performed in the same line of work; and (3) completed with no
more than 1 break in service of less than 30 days. Martinez, 118 M.S.P.R. 154,
¶ 6. Here, the Standard Form 50 (SF-50) documenting the appellant’s
appointment to the Claims Representative position reflects a service computation
date of May 31, 2014, approximately 2 months prior to his Recent Graduates
Program appointment to the Claims Representative Position. IAF, Tab 4 at 42.
However, even assuming that the appellant served in another position that
qualified for tacking for approximately 2 months, these additional 2 months of
service would be insufficient to complete his trial period, which was at least
2 years. Id. The agency also submitted SF-50s indicating that the appellant had
approximately 2 months of prior service with the agency between January 26,
2014, and March 22, 2014, under a term appointment to a part-time Personal
Assistant position. IAF, Tab 4 at 48, 52. However, this service cannot be tacked
towards the completion of the appellant’s trial period, because there was a break
in service of greater than 30 days. IAF, Tab 42, 48; see
Martinez, 118 M.S.P.R. 154, ¶ 6. For this reason, and for the reasons discussed
above, the appellant failed to nonfrivolously allege that he is an employee under 5
U.S.C. § 7511(a)(1)(C)(i).
¶12 Similarly, we find that the appellant failed to nonfrivolously allege that he
qualifies as an employee under 5 U.S.C. § 7511(a)(1)(C)(ii). The appellant has
not alleged, either below or on review, that he had 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. IAF, Tab 1, PFR File, Tab 1;
see 5 U.S.C. § 7511(a)(1)(C)(ii). Moreover, our review of the record does not
reflect that the appellant had such service. IAF, Tab 4.
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¶13 For the first time on review, the appellant contends that his appointment
under the Recent Graduates Program did not begin until May 27, 2015, and that
he served in the Claims Representative position under another unspecified
appointment between July 2014 and his Recent Graduates Program appointment.
PFR File, Tab 1 at 4. Based on these alleged facts, the appellant contends that the
Board has jurisdiction over his appeal. Id. He does not explain his failure to
respond to the acknowledgment order or the agency’s motion to dismiss below.
PFR File, Tab 1. Nevertheless, because the appellant alleges that his new
argument implicates the Board’s jurisdiction over the appeal, 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 a Board proceeding, we will consider it.
See Lovoy v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30
(2003). Even assuming that, contrary to the appellant’s SF-50 in the record
below, IAF, Tab 4 at 42, his appointment under the Recent Graduates Program
did not begin until May 27, 2015, this would fail to raise a nonfrivolous
allegation that he qualified as an employee under 5 U.S.C. § 7511(a)(1)(C)(i) or
(ii). Therefore, we find that the appellant’s new argument on review does not
raise a nonfrivolous allegation of jurisdiction over his appeal.
¶14 In sum, for the reasons discussed above, we affirm the initial decision
dismissing the appellant’s appeal for lack of jurisdiction, as modified to clarify
that the appeal is dismissed on the ground that the appellant failed to raise a
nonfrivolous allegation of jurisdiction over the appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 U.S. 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 U.S. 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 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
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Merit Systems Protection Board neither endorses the services 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.
Dean Thap v. Social Security Administration
Combined Opinion