UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE PAUL BARTON, DOCKET NUMBER
Appellant, NY-0752-16-0198-I-1
v.
DEPARTMENT OF VETERANS DATE: September 21, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
George Paul Barton, Buffalo, New York, pro se.
Jeffrey L. Whiting, Esquire, Buffalo, New York, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a preference eligible, received an excepted-service
appointment to the position of Medical Support Assistant, GS-5, effective
August 9, 2015, subject to completion of a 1-year trial period. Initial Appeal File
(IAF), Tab 10 at 8, 13. Prior to the completion of his trial period, however, the
agency terminated him effective March 11, 2016, due to unacceptable conduct.
Id. at 17. The appellant timely appealed the termination to the Board and
requested a hearing. IAF, Tab 1 at 1-2. In an acknowledgment order, the
administrative judge provided the appellant with jurisdictional notice of the
requirements for establishing that he was an “employee” with Board appeal rights
under 5 U.S.C. chapter 75 and afforded him an opportunity to respond. 2 IAF,
2
Although the appellant was a preference eligible appointed to the excepted service, the
acknowledgment order provided the jurisdictional notice applicable to individuals in the
competitive service. IAF, Tab 2 at 2-5. The initial decision cured the defective notice,
however, by correctly informing the appellant of what he must do to establish
jurisdiction as a preference-eligible “employee” in the excepted service and affording
him an opportunity to establish jurisdiction on review. IAF, Tab 12, Initial Decision
at 2-4; Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8
(2007).
3
Tab 2 at 2‑5. In response, the appellant asserted that he was confused about why
he was terminated and, further, that he had not been allowed to have any union
representation. IAF, Tab 3 at 4.
¶3 In an initial decision based on the written record, the administrative judge
found that the appellant failed to nonfrivolously allege that he was an “employee”
with appeal rights to the Board under 5 U.S.C. § 7511(a)(1)(B) and dismissed the
appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). The appellant
has filed a petition for review of the initial decision, and the agency has
responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. On review,
the appellant asserts only that he is confused about what he did wrong and that he
was told to file an appeal to get his job back. PFR File, Tab 1 at 5.
¶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
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An individual who meets the
definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
challenge his removal from the Federal service by filing an appeal with the
Board. Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9
(2011); see 5 U.S.C. §§ 7512(1), 7513(d). The definition of “employee” includes
“a preference eligible in the excepted service who has completed 1 year of current
continuous service in the same or similar positions” in an Executive
agency. 5 U.S.C. § 7511(a)(1)(B)(i).
¶5 Here, the appellant, a preference eligible, served in his excepted-service
appointment for less than 1 year—from August 9, 2015, to March 11, 2016—and
he has not shown or alleged that he has prior service that could be tacked onto his
current service. 3 IAF, Tab 10 at 8, 10-11, 17, 41. Thus, as the administrative
3
In the initial decision, the administrative judge cited the incorrect dates of the
appellant’s appointment and termination. Compare ID at 2, with IAF, Tab 10 at 8, 17.
This error, however, did not affect the outcome of the case and provides no basis for
4
judge correctly determined, the appellant does not meet the statutory definition of
an “employee” with appeal rights to the Board. ID at 4. Because the appellant is
not an “employee” under 5 U.S.C. § 7511(a)(1)(B), we agree with the
administrative judge’s finding that the Board lacks jurisdiction over this appeal.
See Allen v. Department of the Navy, 102 M.S.P.R. 302, ¶ 9 (2006). The
appellant’s contentions on review provide no basis to disturb this finding.
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:
United States 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.
reversal of the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984).
5
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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.