                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     HENRY COLBURN,                                  DOCKET NUMBER
                 Appellant,                          SF-3443-14-0446-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: June 4, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Ben Toth, Esquire, Oakland, California, for the appellant.

           Philip A. White, Monterey, California, for the appellant.

           Michael L. Halperin, Esquire, Monterey, California, 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 removal 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

     *
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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, and based on the following
     points and authorities, 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        Beginning in 2001, the agency employed the appellant as an AD-1701
     Assistant Professor in a series of consecutive excepted service appointments with
     not-to-exceed (NTE) terms of 1 or 2 years. Initial Appeal File (IAF), Tab 13
     (Standard Form 50s). The last such appointment was effective March 10, 2013,
     and had a NTE date of March 9, 2014. Id. at 7. In January and February 2014,
     the agency advised him that his appointment would not be renewed due to
     performance issues. IAF, Tab 1 at 10-11. The appellant appealed the nonrenewal
     of his appointment to the Board, arguing that the agency should have placed him
     in a short-term appointment to address performance issues and that the agency did
     not properly or sufficiently review his performance. Id. at 7. The administrative
     judge issued an acknowledgment order, which informed the appellant that the
     Board lacks jurisdiction over the nonrenewal of a term appointment with a
     definite expiration date, set forth the applicable law and burden of proof, and
     ordered him to submit evidence and argument regarding jurisdiction. IAF, Tab 2
     at 2-4. The appellant responded, arguing that the Board should find jurisdiction
                                                                                          3

     over his removal appeal because:         (1) he had been serving under the same
     appointment for over 12 years and thus qualified as an “employee” with Board
     appeal rights; and (2) his tenure-track term appointment with unlimited
     extensions in the Faculty Pay System was analogous to a permanent General
     Schedule appointment in that incumbents of both can expect continued
     employment unless they are removed for cause or because of a lack of available
     work.     See IAF, Tab 8 at 6-12.     The agency responded that the Board lacked
     jurisdiction to review the appeal because the appellant was removed at the
     expiration of his term appointment and he was not an employee with appeal
     rights.     IAF, Tab 9 at 8.         Without holding the requested hearing, the
     administrative judge dismissed the appeal for lack of jurisdiction, explaining that
     the termination of or the failure to continue an individual’s appointment
     following the expiration of a term appointment is not an appealable action. IAF,
     Tab 18, Initial Decision (ID) at 4-5.
¶3           The appellant has filed a petition for review of the initial decision, in which
     he argues that: (1) he was an “employee” for purposes of Board jurisdiction;
     (2) his separation was a termination for cause (performance) that the agency
     deliberately misclassified as a failure to extend; and (3) the agency is abusing its
     excepted service appointing authority. Petition for Review (PFR) File, Tab 4.
     The agency has not filed a response to the petition for review.
¶4           To have Board appeal rights under 5 U.S.C. chapter 75, an individual must
     be an “employee” as defined by section 7511(a)(1)(C)(i) or (ii) and must have
     suffered an “adverse action.”       5 U.S.C. §§ 7511(a), 7512(1), 7513(d).         The
     administrative judge correctly explained, however, that where, as here, an
     expiration date of an appointment is specified as a basic condition of
     employment, the expiration of the appointment is not an adverse action
     appealable to the Board, and there is no further right to federal employment upon
     expiration of the appointment. See Endermuhle v. Department of the Treasury,
     89 M.S.P.R. 495, ¶ 9 (2001); see also Leonard v. Department of the Army,
                                                                                       4

     78 M.S.P.R. 492, 494 (1998).      As such, even if the appellant qualifies as an
     “employee” within the statutory definition, there is no appealable adverse action
     because his employment ended on March 9, 2014, upon the expiration of his final
     NTE appointment. IAF, Tab 13 at 7; see Scott v. Department of the Air Force,
     113 M.S.P.R. 434, ¶ 9 (2010).       Accordingly, as correctly determined by the
     administrative judge, the Board lacks jurisdiction over this appeal.
¶5         The appellant next argues that the termination of his appointment was
     actually a performance-based removal, over which the Board has jurisdiction, and
     that the agency has “deliberately mischaracterized” the action as a nonrenewal of
     his appointment in order to avoid its obligations under Title V. PFR File, Tab 4
     at 15-18.    The Board has explained, however, that the fact that an agency
     considers an employee’s performance in deciding not to reappoint him fails to
     establish jurisdiction.   Scott, 113 M.S.P.R. 434, ¶ 9 (citing Shelton v. Federal
     Deposit Insurance Corporation, 38 M.S.P.R. 303, 306 (1988)).
¶6         Lastly, the appellant argues that the agency is abusing its authority under
     5 C.F.R § 213.3101, which allows agencies to              make excepted service
     appointments under certain circumstances, by “subjecting its employees to an
     endless cycle of time-limited appointments, while also asserting a blanket right
     not to renew those employees for any reason whatsoever, including for
     performance.”    PFR File, Tab 4 at 20-22.       The appellant did not raise this
     argument below, however, and has provided no reason why we should consider it
     for the first time on review.      See Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980) (stating that the Board generally will not consider an
     argument raised for the first time in a petition for review absent a showing that it
     is based on new and material evidence not previously available despite the party’s
     due diligence). Moreover, even if the appellant’s allegation were true, he has
     failed to point to any authority that would vest the Board with jurisdiction to
     consider this claim in the absence of an otherwise appealable action.
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                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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 United States 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 United
States     Code,    at   our   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
United States 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
                                                                                6

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.
