Johnson v. Merit Systems Protection Board , 431 F. App'x 915 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3064
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. CH315H100653-I-1.
__________________________
Decided: July 13, 2011
__________________________
DAVID JOHNSON, of Oak Park, Illinois, pro se.
DAVID S. BROOKS, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
JOHNSON v. MSPB 2
Before RADER, Chief Judge, and NEWMAN and REYNA,
Circuit Judges.
PER CURIAM.
David Johnson appeals the decision of the Merit Sys-
tems Protection Board (“Board”) dismissing his appeal for
lack of jurisdiction. Johnson v. Dep’t of Treasury, No. CH-
315H-10-0653-I-1 (M.S.P.B. June 14, 2010) (“Initial
Decision”), (M.S.P.B. Nov. 23, 2010) (“Final Order”). This
court affirms.
I
Mr. Johnson’s start date with the Internal Revenue
Service was June 22, 2009. RA82. In May of 2010, the
Internal Revenue Service terminated Mr. Johnson from a
GS-13 Revenue Agent position. RA15. Mr. Johnson had
been a probationary employee for eleven months at the
time of his termination. Mr. Johnson received a final
decision from the agency on May 10, 2010, effective May
14, 2010, affirming the agency’s decision to terminate
him. RA21.
On May 27, 2010, Mr. Johnson filed an appeal chal-
lenging the agency’s decision to terminate. On May 28,
the Board issued an order explaining that probationary
employees who have less than one year of current, con-
tinuous service in the competitive service had no rights of
appeal to the Board. The Board informed Mr. Johnson
that he could submit evidence or argument establishing
why his appeal should not be dismissed for lack of juris-
diction. RA19.
Mr. Johnson filed a supplemental appeal form, identi-
fying an Office of Personnel Management (“OPM”) em-
ployment practices claim. RA21. Mr. Johnson alleged
3 JOHNSON v. MSPB
that the performance appraisal system promulgated by
OPM failed to provide accurate evaluation standards and
did not serve as objective benchmarks for all employees.
RA22. He further alleged that he was not given an
opportunity to compete for a GS-14 position of Senior
Flow-Through Specialist because the one-year time-in-
grade requirement was unfairly applied. RA22.
On June 14, 2010, Mr. Johnson’s appeal was dis-
missed. Initial Decision at 1. The Board held that Mr.
Johnson had no statutory right of appeal because he was
terminated during a probationary period. Initial Decision
at 2. Mr. Johnson thereafter filed a petition for review
with the Board, again contending that his termination
violated the performance appraisal system established
under Chapter 43 of Title 5. RA40-41. Mr. Johnson
reiterated his contention that the one-year time-in-grade
requirement should have been applied differently in his
application for the Senior Flow-Through Specialist posi-
tion. RA41.
In his petition for review, Mr. Johnson submitted
documentation which he purported to show that he ap-
plied for the GS-14 Senior Flow-Through Specialist posi-
tion. RA78-79. In response, the Agency submitted the
sworn affidavit of a Senior Human Resources Specialist
for the Internal Revenue Service, which stated that Mr.
Johnson “never submitted an application for any of these
vacancy announcements. As such, his application could
not be considered, nor could he have been evaluated to
determine whether he met the requirements for the
position.” RA81.
In a Final Order issued November 23, 2010, the Board
denied Mr. Johnson’s petition for review. Final Order at
2. The Board held that Mr. Johnson has no appeal rights
JOHNSON v. MSPB 4
under Chapter 43 of Title 5 because the chapter does not
apply to termination of an employee in the competitive
service who is serving a probationary period. Id. The
Board acknowledged that time-in-grade requirements
may be appealable under controlling law, but held that
Mr. Johnson’s allegation that the time-in-grade restric-
tions were misapplied did not meet the required “non-
frivolous” threshold. Id. at 3-4.
This appeal followed. This court has jurisdiction un-
der 28 U.S.C. § 1295(a)(9).
II
The Board’s jurisdiction is not plenary; rather, it is
limited to actions designated as appealable to the Board
under any law, rule, or regulation. Morse v. Merit Sys.
Prot. Bd., 621 F.3d 1346, 1350 (Fed. Cir. 2010). This
court reviews the Board’s decisions regarding jurisdiction
without deference. Butler v. Soc. Sec. Admin., 331 F.3d
1368, 1371-72 (Fed. Cir. 2003).
Mr. Johnson appeals on the basis of three separate
theories. First, Mr. Johnson asserts that the Board had
jurisdiction over a performance standards challenge.
RA24-28, 37, 40-41. Second, Mr. Johnson argues that the
Board had jurisdiction over his position reclassification
claim pursuant to 5 U.S.C. § 5114. Third, Mr. Johnson
alleges the Board deprived him of his due process rights
for a full and fair hearing. We take each of these theories
in turn.
Except for situations involving allegations of dis-
crimination based on marital status or partisan political
activity—neither of which Mr. Johnson asserts—the
Board has no jurisdiction to review an adverse personnel
5 JOHNSON v. MSPB
action taken against a government employee during his
probationary period. 5 U.S.C. § 4303(f)(2) (2000); 5 C.F.R.
§ 315.806(b) (1990); Collins v. Merit Sys. Prot. Bd., 978
F.2d 675, 679 (Fed. Cir. 1992). Indeed, the statute ex-
cludes Board appeal rights for probationary employees. 5
U.S.C. § 4303(f)(2). Accordingly, the Board correctly held
it lacked jurisdiction over Mr. Johnson’s challenge to his
performance standards.
Mr. Johnson’s allegation that the Board has jurisdic-
tion over his position reclassification claim is also without
merit. Mr. Johnson cites 5 U.S.C. § 5114 to support his
argument, but this section was repealed in 1986. Pub.L.
99-386, Title I, § 110(a), Aug. 22, 1986, 100 Stat. 822.
Based on his most recent submission to the Board, Mr.
Johnson likely intended to refer generally to 5 U.S.C. §§
5101-5115 (2006), as he alleged that the agency had
refused to reclassify his position from the GS-13 level to
the GS-14 level in violation of 5 U.S.C. §§ 5101 et seq.
Although 5 U.S.C. §§ 5110 and 5112 authorize OPM to
review position classifications, the Board has no authority
to hear appeals of such reviews. Saunders v. Merit Sys.
Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985). This
court’s decision in Meeker v. Merit Systems Protection
Board held that two conditions must be met to provide
the Board jurisdiction: first, the appeal must concern an
“employment practice” subject to review by the Board;
and second, the allegation that the employment practice
has violated “basic requirements” for employment prac-
tices set forth in 5 C.F.R. § 300.103 must be nonfrivolous.
319 F.3d 1368, 1373 (Fed. Cir. 2003). In this case, Mr.
Johnson has not identified an employment practice that is
subject to review by the Board in his appeal; and second,
he has not made a nonfrivolous allegation that he has
been deprived of one of the “basic requirements” set forth
in § 300.103. As such, the Board was correct in its deter-
JOHNSON v. MSPB 6
mination that it lacked authority to hear Mr. Johnson’s
appeal.
Mr. Johnson alleges that he has been deprived of due
process of law because he did not receive a hearing of the
evidence against the agency. Mr. Johnson stated in his
reply brief that “the Board has the authority to enforce
Article 13 of the National Treasury Employees Agreement
which is a property right protected by the Constitution of
the United States as held by the Supreme Court in
Sinderman.” RA-74. We hold that the Board committed
no error. “There is no statutory authority requiring the
[Board] to hold a hearing on the threshold issue of juris-
diction.” Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424,
1427 (Fed. Cir. 1984). The right to a hearing applies “only
after jurisdiction has been properly invoked.” Id. at 1428.
Because the Board did not have jurisdiction over the
claims raised by Mr. Johnson, the Board did not have
jurisdiction over his due process claim.
Mr. Johnson raised several other theories before the
Board, including his time-in-grade employment practices
claim. Because he has not appealed those theories, this
court does not address them here. Accordingly, this court
affirms the decision of the Board dismissing Mr. John-
son’s appeal for lack of jurisdiction.
AFFIRMED
Each party shall bear its own costs.