                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JON EAKMAN,                                     DOCKET NUMBER
                         Appellant,                  DA-315H-15-0226-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 14, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jon Eakman, Houston, Texas, pro se.

           Eric J. Drootman, Edinburg, Texas, 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 probationary termination 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the 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 June 2, 2014, the agency appointed the appellant to the position of
     Customs and Border Protection Officer in the competitive service. Initial Appeal
     File (IAF), Tab 4 at 23. The career-conditional appointment was subject to the
     completion of a 1-year probationary period. Id. On January 8, 2015, prior to the
     completion of the 1-year period, the agency terminated the appellant for failing to
     follow leave-requesting procedures. Id. at 13-16.
¶3         The appellant filed an appeal of his termination with the Board and
     requested a hearing. IAF, Tab 1. He claimed that the agency committed harmful
     procedural error and the prohibited personnel practice of discrimination. Id. at 4.
     In an acknowledgment order, the administrative judge informed the appellant that
     the Board may not have jurisdiction over his appeal and apprised him of the
     regulatory right to appeal available to probationers 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. The agency moved to dismiss the appeal for
     lack of jurisdiction. IAF, Tab 4 at 5, 10. In response, the appellant claimed that
                                                                                         3

     the agency terminated him for preappointment reasons without the procedures
     required under 5 C.F.R. § 315.805 and submitted a letter dated January 6, 2015,
     documenting his acceptance of the agency’s offer of a temporary light duty
     position. IAF, Tabs 6-7.
¶4         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 19, Initial
     Decision (ID) at 1, 7. She found that the appellant did not meet the statutory
     definition of   an   “employee” with       Board appeal rights under 5 U.S.C.
     § 7511(a)(1)(A). ID at 4-5. She also found that the appellant failed to make a
     nonfrivolous allegation that he had a regulatory right to appeal under 5 C.F.R.
     § 315.806(b)-(c). ID at 5-6. Finally, she stated that the Board could not address
     his claims of harmful procedural error and discrimination absent an otherwise
     appealable action. ID at 6-7.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. 2 The agency has filed a response. PFR File, Tab 2. The appellant
     has filed a reply to the agency’s response. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6         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
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).              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 “employee” in 5 U.S.C.
     § 7511(a)(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).
     For an individual in the competitive service, this means that he either must not be


     2
       According to 5 C.F.R. § 1201.14(m)(1), all pleadings filed via the Board’s e-Appeal
     Online System are time-stamped with Eastern Time, but the timeliness of a pleading is
     determined based on the time zone from which the pleading was submitted. Here, the
     appellant submitted his petition for review from the Central Time Zone; therefore, his
     petition for review is timely. PFR File, Tab 1 at 4.
                                                                                         4

     serving a probationary or trial period under an initial appointment, or have
     completed 1 year of current continuous service under other than a temporary
     appointment limited to 1 year or less.        Id.; see 5 U.S.C. § 7511(a)(1)(A).
     Individuals in the competitive service who do not satisfy either definition may
     nevertheless have the right to appeal a termination to the Board under 5 C.F.R.
     § 315.806. Walker, 119 M.S.P.R. 391, ¶ 5. However, the Board’s jurisdiction
     over termination appeals under that section is limited to the following situations:
     (1) the employee was discriminated against based on his marital status; (2) the
     agency action was based on partisan political reasons; or (3) the agency action
     was based (in whole or part) on preappointment reasons and the agency did not
     follow the procedures of 5 C.F.R. § 315.805.      Walker, 119 M.S.P.R. 391, ¶ 5.
     There is no statutory requirement that the Board hold a hearing on the threshold
     issue of jurisdiction. Id., ¶ 6. Nevertheless, if an appellant makes a nonfrivolous
     allegation of jurisdiction, and the Board cannot make a determination based on
     the documentary evidence, the Board should hold an evidentiary hearing to
     resolve the jurisdictional question. Id.
¶7         Here, the appellant does not allege that he qualifies as an “employee” under
     5 U.S.C. § 7511(a)(1)(A) or that the agency terminated him for partisan political
     reasons or due to marital status discrimination. In his petition for review, he
     claims that he has a regulatory right to appeal because the agency terminated him
     based on preappointment reasons and did not follow the procedures required
     under 5 C.F.R. § 315.805.      PFR File, Tabs 1, 4; see 5 C.F.R. § 315.806(c).
     Specifically, he asserts that, because his career-conditional appointment was
     subject to the completion of a 1-year probationary period, he had not been
     “officially appointed in the position” when he was terminated, and thus the
     agency terminated him for preappointment reasons. PFR File, Tab 1 at 5. He
     cites to his Standard Form 50 to support his argument. Id.; see IAF, Tab 4 at 23.
¶8         We find the appellant’s argument is not persuasive. Our reviewing court
     has upheld the Board’s interpretation that “appointment” under 5 C.F.R.
                                                                                           5

     § 315.805 refers to an employee’s initial appointment to a competitive-service
     position subject to a probationary period.        See, e.g., Younies v. Merit Systems
     Protection Board, 662 F.3d 1215, 1219 (Fed. Cir. 2011) (holding that the Board
     properly determined that the appellant was not entitled to the procedural
     protections under 5 C.F.R. § 315.805 because he was not terminated based in
     whole or in part on a preprobationary condition). Further, the appellant may be
     conflating   the    requirement   of   a     1-year   probationary   period   with   his
     career-conditional appointment.        To clarify, his continued employment was
     subject to the completion of a 1-year probationary period.               See 5 C.F.R.
     § 315.803(a).      In contrast, under the career-conditional appointment, his
     conversion to a career appointment was conditional upon the completion of
     3 years of creditable service. See 5 C.F.R. §§ 315.201-315.202.
¶9        For these reasons, we find that the administrative judge properly interpreted
     5 C.F.R. § 315.805 and the appellant has failed to make a nonfrivolous allegation
     that the regulation applies to him.         We therefore affirm the initial decision
     dismissing the probationary termination appeal for lack of 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
                                                                                          6

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
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.
