Case: 20-1455   Document: 38     Page: 1   Filed: 08/05/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                KENNETH RAY KENT,
                     Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2020-1455
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-315H-19-0661-I-1.
                 ______________________

                Decided: August 5, 2020
                ______________________

    KENNETH RAY KENT, Greenwood Village, CO, pro se.

     STEPHEN FUNG, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by KATHERINE MICHELLE
 SMITH, TRISTAN LEAVITT.
                  ______________________

  Before PROST, Chief Judge, REYNA and TARANTO, Circuit
                         Judges.
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 2                                               KENT   v. MSPB



 PER CURIAM.
     Mr. Kenneth Ray Kent appealed his employment ter-
 mination from the Internal Revenue Service (“IRS”). The
 Merit Systems Protection Board (“Board”) dismissed
 Mr. Kent’s appeal for lack of jurisdiction. Mr. Kent now
 petitions for review. For the reasons below, we affirm the
 Board’s decision.
                        BACKGROUND
     Mr. Kent was appointed to the position of Contact Rep-
 resentative at the IRS on July 26, 2004. Then, on May 27,
 2005, Mr. Kent’s employment was terminated for “leave
 and AWOL issues.” S.A. 39. 1
      Fourteen years later, Mr. Kent filed an appeal with the
 Board contesting his termination. See S.A. 1. Because
 Mr. Kent was terminated during the one-year probationary
 period noted on his appointment form, the administrative
 judge directed Mr. Kent and the IRS to address whether
 the Board had jurisdiction. S.A. 19–23. Mr. Kent had held
 other federal civilian positions several years before his ap-
 pointment, with a gap of several years in between. S.A. 2,
 27–30, 49–52. After briefing, the administrative judge ini-
 tially issued an order declaring that the Board had juris-
 diction due to the length of Mr. Kent’s prior employment.
 S.A. 37–38. But several weeks later, the administrative
 judge reconsidered this determination in light of the mul-
 tiple-year break in Mr. Kent’s service and directed
 Mr. Kent to submit additional briefing regarding his em-
 ployment status.      S.A. 40–41; see also id. at 42–58
 (Mr. Kent’s response). Next, the administrative judge di-
 rected further briefing on the administrative mechanism




     1  We cite the supplemental appendix (“S.A.”) filed
 with the government’s response brief.
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 KENT    v. MSPB                                            3



 used to appoint Mr. Kent. S.A. 59–60; see also id. at 65–75
 (Mr. Kent’s response).
     The administrative judge ultimately concluded that be-
 cause Mr. Kent had failed to nonfrivolously allege that he
 was an “employee” for the purposes of 5 U.S.C.
 § 7511(a)(1)(A), Mr. Kent lacked the right to an appeal of
 his termination. S.A. 6. Accordingly, the administrative
 judge dismissed the appeal for lack of jurisdiction. S.A. 7.
 Mr. Kent did not seek administrative review of the admin-
 istrative judge’s initial decision, which therefore became
 the Board’s final decision. This petition for review fol-
 lowed. 2
    We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A)
 and 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
                               I
      We must affirm the Board’s decision unless we find it
 to be (1) arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law; (2) obtained without
 procedures required by law, rule, or regulation having been
 followed; or (3) unsupported by substantial evidence.
 5 U.S.C. § 7703(c). We decide de novo whether the Board
 has jurisdiction, while accepting the Board’s findings of
 fact if they are supported by substantial evidence. Parrott
 v. MSPB, 519 F.3d 1328, 1334 (Fed. Cir. 2008).
      The Board has limited jurisdiction under 5 U.S.C.
 § 7701. Removal from employment in the competitive ser-
 vice is appealable, but generally only if an individual qual-
 ifies as an “employee” under 5 U.S.C. § 7511(a)(1)(A) at the


     2   Mr. Kent filed a motion to supplement, presenting
 arguments in response to the Board’s response brief. See
 Mot. to Suppl., ECF No. 34. We accept Mr. Kent’s filing
 and have considered Mr. Kent’s arguments in this opinion.
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 4                                               KENT   v. MSPB



 time of removal. McCormick v. Dep’t of the Air Force, 307
 F.3d 1339, 1341 (Fed. Cir. 2002). A petitioner has the bur-
 den of establishing the Board’s jurisdiction. McCormick,
 307 F.3d at 1340; 5 C.F.R. § 1201.56(b)(2)(i)(A). A peti-
 tioner who makes a nonfrivolous allegation of jurisdiction
 is entitled to an evidentiary hearing at which jurisdiction
 must be established by a preponderance of the evidence.
 Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed.
 Cir. 2006) (en banc). Nonfrivolous allegations are “more
 than conclusory,” “plausible on [their] face,” and “material
 to the legal issues.” 5 C.F.R. § 1201.4(s). An administra-
 tive judge, in considering whether allegations are nonfriv-
 olous, may not weigh evidence or resolve the parties’
 conflicting factual assertions. Dumas v. MSPB, 789 F.2d
 892, 893–94 (Fed. Cir. 1986). The judge, however, may rely
 on the written record. Kahn v. Dep’t of Justice, 528 F.3d
 1336, 1341 (Fed. Cir. 2008).
      Under § 7511(a)(1)(A), an individual in the competitive
 service is an “employee” if he is “not serving a probationary
 or trial period under an initial appointment” or he “has
 completed 1 year of current continuous service.” “Current
 continuous service” is a period of employment immediately
 preceding an adverse action without a break in federal ci-
 vilian employment of a workday. 5 C.F.R. § 752.402. Even
 if not “continuous,” prior service may count toward the one-
 year probationary period requirement if the service was
 rendered at the same agency, in the same line of work, and
 with no more than one 30-day-or-less break in service.
 5 C.F.R. § 315.802(b).
     Alternatively, the probationary period is sometimes
 not required if the individual is “reinstated.” Through re-
 instatement, agencies may noncompetitively appoint indi-
 viduals who were previously employed in a career or
 career-conditional appointment. 5 C.F.R. § 315.401(a). An
 individual appointed by reinstatement is exempted from a
 probationary period if he completed one during his prior
 service.   Id. § 315.801(a)(2).      But reinstatement is
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 KENT   v. MSPB                                              5



 discretionary, even for qualified candidates having “career”
 tenure status. See id. § 315.401(a) (“[A]n agency may ap-
 point by reinstatement . . . .” (emphasis added)); id.
 § 315.301(b); accord Shafer v. Dep’t of the Air Force,
 935 F.2d 280 (Fed. Cir. 1991) (nonprecedential).
                               II
     We agree with the Board that Mr. Kent has not made
 a nonfrivolous allegation that he was an “employee” under
 § 7511(a)(1)(A), because he was serving in a probationary
 period at the time of termination.
     It is undisputed that Mr. Kent was terminated less
 than one year after he started working for the IRS. S.A. 6.
 And because his previous federal civilian employment had
 occurred years prior, it could not count toward the proba-
 tionary period. S.A. 6. The only issue, then, is whether
 Mr. Kent was reinstated.
      Mr. Kent’s appointment SF-50 (Notification of Person-
 nel Action Form) states that his appointment was subject
 to completion of a one-year probationary period. S.A. 35.
 Regulations require that any individual appointed to a po-
 sition in the competitive service by selection from a certifi-
 cate of eligibles must serve a one-year probationary period.
 5 C.F.R. § 315.801(a)(1). The Board found that Mr. Kent’s
 selection was from a certificate of eligibles. See S.A. 4–5,
 35, 36. Indeed, the preferred federal hiring policy is
 through appointment via open competition. See 5 C.F.R.
 § 332.101(a). Consistently, Mr. Kent’s SF-50s use the OPM
 codes 101 and 100, which reflect selection from a certifi-
 cate. See S.A. 33 n.1, 35–36, 56. In contrast, Mr. Kent’s
 previous SF-50s from reinstated positions use the OPM
 code 140. See S.A. 54–57. Additionally, the appointment
 SF-50 states “OPM DELE AGR CERT NO” as the legal au-
 thority for the appointment, which the Board reasonably
 found to indicate a delegation to the agency of OPM’s au-
 thority to assemble a certificate of eligibles. S.A. 5 (citing
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 6                                               KENT   v. MSPB



 5 C.F.R. § 315.301), 35–36. 3 Likewise, the word “reinstate-
 ment” was absent from Mr. Kent’s appointments. S.A. 5,
 35–36.
     Mr. Kent argued before the Board that the IRS “fla-
 grantly misapplied” OPM rules and “misclassified” him,
 rendering him a probationary employee. S.A. 46. But this
 allegation is conclusory. He further argued that he was
 “not initially chosen for 1 of many (10 or more) contact rep-
 resentative positions” and that “after ascertaining that in-
 formation,” he “called the [IRS] Director,” “informed the
 Director of [his] concerns” and reinstatement eligibility,
 and “subsequently received a phone call and was informed
 to report to” work. S.A. 47, 67–68. Even taken as true,
 Mr. Kent’s allegations do not plausibly establish that he
 was reinstated.
     Alternatively, Mr. Kent argues that because he at-
 tained “career” tenure status, see 5 C.F.R. §§ 315.301(b),
 315.201(c)(2), the agency was required to reinstate him—
 or at the very least, no new probationary period was re-
 quired. Again we disagree. As discussed above, career sta-
 tus can qualify an individual for reinstatement. But
 reinstatement is a matter of discretion. See 5 C.F.R.
 § 315.401(a). And without reinstatement, Mr. Kent was re-
 quired to complete a probationary period before qualifying
 as an “employee” with appeal rights.                See id.
 § 315.801(a)(1); see also 5 U.S.C. § 7511(a)(1)(A).




     3   Mr. Kent argues that the lack of a specific numeric
 code for this authority on the face of the SF-50 renders the
 authority invalid. Though the Board chided the agency for
 not including the certificate number, the Board nonethe-
 less disagreed with Mr. Kent, finding no legal authority in
 support of his proposition. We agree with the Board.
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 KENT   v. MSPB                                            7



                        CONCLUSION
     We have considered Mr. Kent’s other arguments but
 find them unpersuasive. 4 For the foregoing reasons,
 Mr. Kent has not established that he was entitled to bring
 an appeal before the Board. Accordingly, we affirm the
 Board’s decision dismissing his appeal.
                        AFFIRMED
                           COSTS
    Each party shall bear its own costs.




    4    The Board did not reach the issue of whether
 Mr. Kent’s appeal was timely. Mr. Kent has asked us by
 motion to review this issue on appeal in the first instance.
 See Mot. to Review Entire Record, ECF No. 33. We need
 not reach this issue because the question of Mr. Kent’s “em-
 ployee” status is dispositive, and therefore deny the mo-
 tion. We also deny Mr. Kent’s motion for an extension of
 the hearing, see Mot. to Extend Hearing, ECF No. 35, as we
 note that this case is resolved without oral argument, and
 Mr. Kent has had a full opportunity to respond—and has
 responded—to the Board’s response brief.          See ECF
 Nos. 26, 27, 28, 29, 31, 34.
