Oliver Walker v. Department of Agriculture ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OLIVER WALKER, DOCKET NUMBER
Appellant, DC-315H-15-0247-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: January 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Oliver Walker, College Park, Maryland, pro se.
Sarah S. Tuck, Riverdale, 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 his 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
regulation or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective January 2014, the agency appointed the appellant to a
career-conditional, competitive service position as an Investigation and
Compliance Specialist under the hiring authority of 31 U.S.C. § 732(g). Initial
Appeal File (IAF), Tab 7 at 7-9. In November 2014, less than 1 year after his
appointment, the agency terminated the appellant. Id. at 10.
¶3 The appellant filed a Board appeal challenging his termination and
requested a hearing. IAF, Tab 1. The administrative judge informed the
appellant that the Board may lack jurisdiction over his appeal because he was a
probationer, had not completed 1 year of current continuous service in the
competitive service without a break in Federal civilian employment of a workday,
and had not alleged that his termination was based on partisan political reasons,
marital status discrimination, or matters that occurred prior to his appointment.
IAF, Tabs 2-3. The agency responded that the Board lacked jurisdiction because
the appellant accepted his position subject to a probationary period and that it
reasonably imposed the probationary period. IAF, Tab 7 at 6. The appellant
argued that, because he was appointed as a former Government Accountability
3
Office (GAO) 2 employee pursuant to 31 U.S.C. § 732(g), he had Board appeal
rights. IAF, Tab 14 at 5-6.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction because the appellant failed to nonfrivolously
allege that he had Board appeal rights. IAF, Tab 15, Initial Decision (ID).
Specifically, she found that the agency did not exceed its authority by requiring
the appellant to complete a probationary period and that he did not complete his
probationary period prior to his termination. 3 ID at 3-4 (citing Shelton v.
Department of the Air Force, 382 F.3d 1335, 1337 (Fed. Cir. 2004)). The
appellant has filed a timely petition for review in which he reiterates that he has
Board appeal rights based upon his prior GAO service and requests a
“jurisdictional hearing on the merits.” Petition for Review (PFR) File, Tab 1. 4
The agency has filed a response in opposition to the petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 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
2
In 2004, Congress redesignated the General Accounting Office as the Government
Accountability Office. GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271,
§ 8(a), 118 Stat. 811. The appellant’s service was prior to the redesignation.
3
The administrative judge found, and we agree, that the Board does not have
jurisdiction under 5 C.F.R. § 315.806 because the appellant did not allege that his
termination was based on marital status, partisan political reasons, or conditions arising
before his appointment. ID at 3-4. The appellant does not challenge these findings on
review and we see no reason to disturb them. PFR File, Tab 1.
4
Below, the appellant alleged that the agency committed harmful procedural error and
prohibited personnel practices and that his termination was not in accordance with the
law. IAF, Tab 1. On review, the appellant does not challenge the administrative
judge’s finding that, absent an otherwise appealable action, we lack jurisdiction over
his affirmative defenses. PFR File, Tab 1. We agree with the administrative judge and
see no reason to disturb this finding. See Penna v. U.S. Postal Service, 118 M.S.P.R.
355, ¶ 13 (2012).
4
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. § 7511(a)(1),
an individual appointed to a competitive service position is an employee with
Board appeal rights if he: (1) is not serving a probationary or trial period under
an initial appointment; or (2) has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less. Calixto v.
Department of Defense, 120 M.S.P.R. 557, ¶ 7 (2014). Current continuous
service is defined as a period of employment or service immediately preceding an
adverse action without a break in Federal civilian employment of a workday.
Ellefson v. Department of the Army, 98 M.S.P.R. 191, ¶ 14 (2005). An appellant
is entitled to a jurisdictional hearing only if he makes nonfrivolous allegations of
jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006) (en banc).
¶6 Here, it is undisputed that the appellant did not have 1 year of current
continuous service prior to his termination. He had previous Government service
from July 2001 to February 2003, as an Analyst at the GAO and from
August 2010 to May 2011, as a Paralegal Specialist at the Department of Labor.
IAF, Tab 7 at 11-14. The agency, though, did not appoint him until
January 2014, and terminated him in November 2014. See IAF, Tab 7 at 7, 10,
12. Thus, he was not continuously employed for at least 1 year. However, the
appellant argues that he has Board appeal rights under 5 U.S.C. § 7511(a)(1)
because, as an appointee under 31 U.S.C. § 732(g), he was not serving a
probationary period. PFR File, Tab 1 at 5-6. The Board has held that, under the
circumstances of a particular case, an agency may impose a probationary period
even in the absence of a statutory or regulatory provision requiring one. See
Calixto, 120 M.S.P.R. 557, ¶¶ 13-17. For the reasons stated below, we find that,
contrary to the appellant’s arguments, the agency was entitled to require him to
serve a 1-year probationary period and that he therefore was a probationary
employee not entitled to Board appeal rights.
5
¶7 The agency appointed the appellant under the authority of 31 U.S.C.
§ 732(g), which states, “An officer or employee of [GAO] completing at least
1 year of continuous service under a nontemporary appointment . . . acquires a
competitive status for appointment to a position in the competitive service.” The
appellant asserts that, based upon his appointment under this statute, a
probationary period cannot be required under 5 C.F.R. § 315.801(e), which
requires probationary periods for, inter alia, appointees under certain special
appointing authorities. PFR File, Tab 1 at 5-6. The appellant also argues that,
since the appointment statute does not require a probationary period, the
regulation, which is inferior to a statute, cannot add an additional requirement in
the form of a probationary period. Id. at 6.
¶8 We agree with the appellant that 5 C.F.R. § 315.801(e) does not require him
to serve a probationary period. That regulation states, “A person who is
appointed to the competitive service either by special appointing authority or by
conversion under subparts F or G of this part serves a 1-year probationary period
unless specifically exempt from probation by the authority itself.” 5 C.F.R.
§ 315.801(e). In Tschumy v. Department of Defense, 104 M.S.P.R. 488, ¶ 14
(2007), the Board interpreted this regulation as requiring 1-year probationary
periods only for those appointed under appointing authorities specified in
subpart F and subpart G of 5 C.F.R. § 315. The appellant was appointed pursuant
to 31 U.S.C. § 732(g), which is not among the hiring authorities specified in those
subparts. Thus, he is correct that he was not required to serve a probationary
period under 5 C.F.R. § 315.801(e).
¶9 The appellant also argues that, because he was appointed pursuant
to 31 U.S.C. § 732(g), his case is distinguishable from Shelton, the case that the
administrative judge cited in support of her finding that he was properly serving a
probationary period. PFR File, Tab 1 at 5-6; see ID at 4 (citing Shelton, 382 F.3d
at 1337). He further asserts that, because the appointment statute does not put a
time limit on when a former employee can apply for a position based upon the
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competitive status he acquired by working at the GAO, there also should be no
time limit on the employee’s Board appeal rights. PFR File, Tab 1 at 6.
We disagree.
¶10 In Shelton, the U.S. Court of Appeals for the Federal Circuit held that the
agency did not exceed its authority by requiring the appellant to serve a 1-year
probationary period where it hired her after a 13-year break in service, even
though she previously had served in the same position for almost 7 years.
Shelton, 382 F.3d at 1336-37. Similarly, the Board has held that, where an
appellant was appointed to a competitive service position pursuant to 10 U.S.C.
§ 1705(g), a statutory direct-hire authority that does not specifically require a
probationary period, the agency had the authority to require her to serve a 1-year
probationary period. Calixto, 120 M.S.P.R. 557, ¶¶ 13-17. In so holding, the
Board concluded that the absence of an affirmative statutory or regulatory
provision requiring a career-conditional appointee to the competitive service to
serve a probationary period did not preclude an agency from imposing a
probationary period. Id., ¶ 13.
¶11 Similar to the statute in Calixto, the appointment statute here does not
affirmatively require a probationary period. See 31 U.S.C. § 732(g). However,
similar to Calixto, both the appellant’s Standard Form 50 and selection letter
indicated that his appointment was subject to a 1-year probationary period. IAF,
Tab 7 at 7-8. Accordingly, we find that the appellant was fully informed of the
probationary period when he accepted the position. See Shelton, 382 F.3d
at 1337. Therefore, the appellant had a gap of almost 3 years between his most
recent separation from Federal service and the appointment at issue and none of
his prior service was in the same position. IAF, Tab 7 at 10, 12, 14. Thus, the
agency had legitimate reasons for requiring a probationary period. See
Calixto, 120 M.S.P.R. 557, ¶ 14 (stating that service of either a probationary or
trial period is the preferred practice in Federal employment because such a period
allows the agency to evaluate an individual’s conduct and performance to
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determine if an appointment to the civil service should become final). We
therefore conclude that the agency acted within its authority by requiring a
probationary period under the circumstances of this case. Accordingly, we agree
with the administrative judge that the appellant has failed to nonfrivolously allege
that he was an employee under 5 U.S.C. § 7511(a)(1). 5 See Calixto, 120 M.S.P.R.
557, ¶ 17.
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
5
The appellant appears to assert that his arguments are entitled to greater deference
because he is pro se. PFR File, Tab 1 at 5. As previously stated, the Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction by law,
rule, or regulation. Maddox, 759 F.2d at 10. Thus, even if we wished to do so, we are
without discretion to defer to the appellant’s arguments or find jurisdiction where, as
here, none exists.
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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 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.