                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     OLIVER L. BAINES,                               DOCKET NUMBER
                   Appellant,                        NY-0752-14-0159-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 22, 2014
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christine Polnak, Albany, New York, for the appellant.

           Kenneth Kio, Albany, New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal of his probationary termination 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous 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).

                                      BACKGROUND
¶2         On January 15, 2014, the agency terminated the appellant’s appointment for
     unacceptable conduct during his 1-year probationary/trial period, which began on
     January 27, 2013. Initial Appeal File (IAF), Tab 4 at 13-14, 23; see IAF, Tab 1
     at 1-2.   The appellant had no prior federal civilian service at the time of this
     appointment. IAF, Tab 1 at 1, Tab 4 at 23. Although the agency’s records show
     that the appellant received a Schedule A excepted appointment, IAF, Tab 4 at 13,
     23, the agency informed the appellant that he could appeal to the Board on
     grounds set forth in 5 C.F.R. part 315, subpart H, which generally applies to
     competitive, not excepted, service positions, and the appellant asserted that he
     had received a competitive appointment, IAF, Tab 1 at 2.
¶3         The appellant filed a timely appeal challenging his probationary termination
     and requested a hearing.     IAF, Tab 1.    The appellant argued that the agency
     terminated him because of a 3-day incarceration that occurred during his
     probationary period in which he was wrongly accused. Id. at 3. The appellant
     stated that, during his incarceration, he was told by a supervisor that his
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     employment status would not be in jeopardy, but the agency subsequently relied
     on his incarceration as one of the reasons for his removal. Id. at 5.
¶4         The administrative judge issued an acknowledgment order notifying the
     appellant of his burden of establishing the Board’s jurisdiction over his appeal,
     including notice of the limited regulatory right of appeal available to certain
     probationary employees and the requirements for meeting the definition of an
     “employee” for purposes of 5 U.S.C. chapter 75 appeal rights. IAF, Tab 2 at 2-4.
     Because the appellant failed to establish a factual dispute bearing on the issue of
     jurisdiction, the hearing he requested was not held, and the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID)
     at 2. The appellant filed a petition for review challenging the dismissal of his
     appeal. 2 Petition for Review (PFR) File, Tab 1. The agency filed a response to
     the appellant’s petition for review. PFR File, Tab 3.

                                           ANALYSIS
¶5         Generally, the Board lacks jurisdiction over a probationary employee’s
     appeal from a termination during the probationary period. Hurston v. Department
     of the Army, 113 M.S.P.R. 34, ¶ 8 (2010). In order to establish Board jurisdiction
     under 5 U.S.C. chapter 75, an individual must, among other things, show that he
     satisfies one of the definitions of an “employee” in 5 U.S.C. § 7511(a)(1).
     5 U.S.C. § 7513(d); see Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5
     (2013).    Based on the agency’s documentation showing the appellant was
     appointed in the excepted service, the administrative judge considered whether
     the appellant satisfied the definitions pertinent to individuals in the excepted
     service.   ID at 4-5.    For an individual in the excepted service who is not a

     2
       The appellant’s petition for review appears to have been filed 2 days late, on April 10,
     2014, rather than on April 8, 2014, the 35 th day after the initial decision’s date of
     issuance.    See 5 C.F.R. § 1201.114(e); Ousman v. Department of Agriculture,
     110 M.S.P.R. 546, ¶ 4 (2009). However, the appellant asserts that he did not receive
     the decision until March 27, 2014. Petition for Review File, Tab 1 at 1. Because the
     appeal must be dismissed for lack of jurisdiction, we do not reach the timeliness issue.
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     preference eligible, this means he must either: (1) not be serving a probationary
     or trial period under an initial appointment pending conversion to the competitive
     service; or (2) have completed 2 years of current continuous service in the same
     or similar positions in an Executive agency under other than a temporary
     appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C); see Van Wersch
     v. Department of Health and Human Services, 197 F.3d 1144, 1151 (Fed. Cir.
     1999). For an individual in the excepted service who is a preference eligible, he
     would need 1 year of current continuous service in the same or similar positions.
     5 U.S.C. § 7511(a)(1)(B)(i).
¶6        On review, the appellant does not challenge the administrative judge’s
     explained findings that he does not meet the definition of an “employee’ under
     either 5 U.S.C. § 7511(a)(1)(B) or (C); but rather reiterates the arguments on the
     merits of his probationary termination. PFR File, Tab 1 at 1-2. The appellant’s
     arguments are irrelevant to the issue of the Board’s authority to review his
     probationary termination. See Sapla v. Department of the Navy, 118 M.S.P.R.
     551, ¶ 7 (2012). Based on our review of the record, we discern no basis to disturb
     the administrative judge’s conclusion in this regard.
¶7        The Board would lack jurisdiction over this appeal even if the appellant
     were in the competitive service, as he claimed on the appeal form. He failed to
     make a nonfrivolous allegation that he satisfied the definition of an “employee” at
     5 U.S.C. § 7511(a)(1)(A), which applies to individuals in the competitive service.
     He never alleged he was not serving a probationary or trial period under an initial
     appointment. IAF, Tab 1 at 2; see 5 U.S.C. § 7511(a)(1)(A)(i). Additionally, the
     record shows the appellant only had 11½ months of total federal service, and he
     did not make a nonfrivolous allegation that he completed 1 year of current
     continuous service. IAF, Tab 1 at 2; see 5 U.S.C. § 7511(a)(1)(A)(ii). Finally,
     even if the appellant were serving on a competitive appointment and thus could
     pursue an appeal on the limited grounds set forth at 5 C.F.R. § 315.806, see
     Mancha v. Department of Homeland Security, 112 M.S.P.R. 216, ¶ 10 (2009), he
                                                                                           5

     has not made a requisite allegation that his termination was based on partisan
     political reasons or marital status discrimination, or was based in whole or in part
     on reasons arising before his appointment, see 5 C.F.R. § 315.806(b), (c); see also
     5 C.F.R. § 315.805 (setting forth procedures for terminating a probationary
     employee based on conditions arising before his appointment).
¶8        Accordingly, based on our review of the record, we find no reason to
     disturb   the   administrative   judge’s   initial   decision   that   the   appellant’s
     probationary termination appeal is not within the Board’s jurisdiction.

                      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.
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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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
