UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAHUM R. RENFROW, DOCKET NUMBER
Appellant, PH-315H-16-0381-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nahum R. Renfrow, Newport, Rhode Island, pro se.
Andrew M. Wallace, Newport, Rhode Island, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 c onclude 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 The facts material to the dispositive jurisdictional issue are undisputed.
The appellant received a career-conditional appointment to the
competitive-service position of Transportation Assistant, subject to the
completion of a 1-year probationary period beginning on September 8, 2015.
Initial Appeal File (IAF), Tab 5 at 13. Effective December 13, 2015, he received
a management-directed reassignment to an Administrative Support Assistant
position in the competitive service. IAF, Tab 7 at 5. On June 17, 2016, the
agency terminated the appellant from service for inattention to duties and failing
to demonstrate an acceptable level of performance. IAF, Tab 5 at 9-12. The
termination notice informed the appellant of his limited Board appeal rights,
based upon his status as a probationary employee. Id. at 11-12.
¶3 The appellant filed the instant appeal, challenging his termination, and he
requested a hearing. IAF, Tab 1 at 1, 3. The administrative judge explained the
Board’s limited jurisdiction and directed the appellant to meet his jurisdictional
burden of proof. IAF, Tab 2 at 2-5. The agency responded by filing a motion to
dismiss, arguing that the appeal was outside the Board’s purview because the
appellant was terminated during his probationary period, he had no prior
creditable Federal civilian service, and he was not an employee with Board appeal
3
rights under 5 U.S.C. chapter 75. IAF, Tab 5 at 5-6. The agency also argued that
the appeal should be dismissed for lack of jurisdiction because the appellant did
not allege one of the limited regulatory grounds for appeal un der 5 C.F.R.,
part 315, subpart H; specifically, he did not allege that the agency discriminated
against him based on his marital status or partisan political affiliation, or that he
was terminated for preappointment reasons without the required procedures. Id.
The appellant did not respond to either the administrative judge’s order or the
agency’s motion to dismiss. IAF, Tab 6, Initial Decision (ID) at 3.
¶4 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. ID at 1. In dismissing the
appeal, the administrative judge found it undisputed that the appellant was hired
to serve in a competitive-service position, subject to a 1-year probationary period,
effective September 8, 2015. ID at 3. The administrative judge also found it
undisputed that the appellant received a management-directed reassignment to an
Administrative Support Assistant position on December 13, 2015, that he was still
required to complete his probationary period in his new position, and that he was
terminated on June 17, 2016, for postappointment reasons before completing his
probationary period. ID at 3-4.
¶5 The administrative judge found that the appellant did not argue or allege
any facts that meet the definition of an “employee” under chapter 75 with the
right to appeal his termination to the Board as an adverse action. Id. The
administrative judge also found that the appellant did not have a regulatory right
of appeal under 5 C.F.R. § 315.806, because he did not allege that his termination
was based on preappointment reasons or that the agency discriminated against
him based on his marital status or for partisan political reasons. ID at 4; see
5 C.F.R. §§ 315.805-06. Based on the foregoing, the administrative judge found
that the appellant failed to establish jurisdiction over his appeal. ID at 4. The
appellant has filed a petition for review of the initial decision dismissing his
4
appeal for lack of jurisdiction, and the agency has responded in opposition to his
petition. Petition for Review (PFR) File, Tabs 1, 3.
¶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). The appellant bears the
burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing only if
he makes a nonfrivolous allegation of Board jurisdiction. Francis v. Department
of the Air Force, 120 M.S.P.R. 138, ¶ 14 (2013). A nonfrivolous allegation of
Board jurisdiction is an allegation of fact that, if proven, could e stablish that the
Board has jurisdiction over the matter at issue. Ferdon v. U.S. Postal Service,
60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s). For the following reasons,
we find that the appellant has failed to nonfrivolously allege any facts that, if
proven, could establish that the Board has jurisdiction over his termination
appeal.
¶7 It is undisputed that, as a probationary employee in the competitive service
with less than 1 year of current continuous service, the appellant has no statutory
right of appeal to the Board under 5 U.S.C. chapter 75. 2 ID at 3-4; see 5 U.S.C.
§ 7511(a)(1)(A); 3 Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005).
2
Under 5 C.F.R. § 315.801(b)(2), a person who is promoted, demoted, or reassigned
before he completed probation is required to “complete the probationary period in the
new position.” The Board observed in Aizin v. Department of Defense, 52 M.S.P.R.
146, 148-49 (1991), that if the appellant was promoted during his probationary period,
“he could finish serving the initial probationary period in the new position.” Here,
regardless of the appellant’s probationary period start time, whether at his initial
appointment or reassignment to a new position, he did not complete his probationary
period.
3
After the appellant’s appointment to the position of Transportation Assistant, but
before his management-directed reassignment, IAF, Tab 5 at 13, Tab 7 at 5, Congress
enacted the National Defense Authorization Act for Fiscal Year 2016 (2016 NDAA) on
November 25, 2015, Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA extended the
probationary period for an individual appointed to a permanent competitive-service
position at the Department of Defense to a 2-year probationary period and provided that
5
Moreover, the appellant does not allege that his termination was based upon
either partisan political reasons or marital status, which would give rise to a
regulatory right of appeal under 5 C.F.R. § 315.806(b). ID at 3-4. Instead, on
review, the appellant argues the merits of his appeal and he submits letters from
individuals attesting to his dedication, professionalism, and customer service.
PFR File, Tab 1 at 1-6, 27-28. The appellant also submits additional documents
with his petition, including but not limited to a copy of the initial decision and
some of the documents submitted by the agency on appeal, but he does not
explain how any of this evidence relates to the dispositive jurisdictional issue
before the Board on review, and we find that these documents are immaterial to
the jurisdictional issue. Id. at 1-7, 15-26, 28-34.
¶8 Because we find that the appellant has failed to make a nonfrivolous
allegation of jurisdiction over his appeal, we will not address the arguments that
he made on review concerning the merits of his termination. 4 PFR File, Tab 1
at 1-2; see Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir.
2000) (recognizing that a decision on the merits would be a nullity in the absence
of Board jurisdiction). We therefore deny the petition for review of the
such individual only qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if he
has completed 2 years of current continuous service. Pub. L. No. 114-92, section 1105,
129 Stat. at 1023-24 (codified as relevant here at 10 U.S.C. § 1599e and 5 U.S.C.
§ 7511(a)(1)(A)(ii)); see Bryant v. Department of the Army, 2022 MSPB 1, ¶¶ 8-10
(2022) (finding that the appellant, who was appointed to a competitive -service position
at the Department of the Army after the enactment of the 2016 NDAA, was subject to a
2-year probationary period). We need not consider which version of 5 U.S.C.
§ 7511(a)(1)(A)(ii) applies because the outcome would be the same under either.
4
To the extent that the administrative judge may have made inappropriate “findings”
under Ferdon, we find no prejudicial error based on our determination that the appellant
has not made a nonfrivolous allegation of jurisdiction. See Ferdon, 60 M.S.P.R. at 329;
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision).
6
administrative judge’s initial decision dismissing this appeal for lack of
jurisdiction. 5
NOTICE OF APPEAL RIGHTS 6
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 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 th e 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).
5
Because we find that the administrative judge properly dismissed this appeal for lack
of jurisdiction, we find it unnecessary to adjudicate the timeliness issue that the agency
raised in opposition to the appellant’s petition for review. PFR File, Tab 3 at 1.
6
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.
7
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 partic ular
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. ____ , 137 S. Ct. 1975 (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
8
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 th eir 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
9
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. 7 The court of appeals must receive your
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
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
7
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
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.