                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEAN THAP,                                      DOCKET NUMBER
                         Appellant,                  DE-3443-16-0037-I-1

                  v.

     SOCIAL SECURITY                                 DATE: June 24, 2016
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steve Aman, San Tan Valley, Arizona, for the appellant.

           Lara A. Bradt, Esquire, San Francisco, 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as
     expressly MODIFIED by this Final Order to supplement the administrative
     judge’s jurisdictional analysis and clarify the basis for finding that the Board
     lacks jurisdiction over the appeal, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         Effective July 27, 2014, the agency appointed the nonpreference-eligible
     appellant to an excepted service Claims Representative position under the
     Pathways Recent Graduates Program (the Recent Graduates Program), pursuant
     to 5 C.F.R. § 213.3402(b). 2     Initial Appeal File (IAF), Tab 4 at 42.         The
     appointment was not to exceed 2 years, with the potential for an agency-approved
     extension of up to 120 days, and the entire duration of the appointment was a trial
     period. Id.; see 5 C.F.R. § 362.303(f) (providing that the duration of a Recent
     Graduates appointment in the excepted service is a trial period). The agency had
     the option to noncompetitively convert the appellant to a permanent position upon
     satisfactory completion of the Recent Graduates Program.            IAF, Tab 4 at
     42; 5 C.F.R. § 362.305(a) (setting forth the circumstances under which an agency


     2
       The Pathways Programs are authorized under Executive Order 13,562, and are an
     exception to the competitive hiring rules for certain positions in the Federal civil
     service. See Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010).
                                                                                           3

     may noncompetitively convert a Recent Graduate to a competitive service term or
     permanent position). However, on September 24, 2015, approximately 1 year and
     2 months after his appointment, the agency terminated the appellant during his
     trial period based on alleged unsatisfactory performance and attendance issues.
     IAF, Tab 1 at 8, Tab 4 at 38.
¶3         The appellant filed a timely Board appeal, in which he challenged the merits
     of his termination, and requested a hearing.         IAF, Tab 1 at 2, 4, 6.      In an
     acknowledgment order, the administrative judge informed the appellant that the
     Board may not have jurisdiction over the appeal, and notified the appellant of the
     requirements for establishing that he was an “employee” with 5 U.S.C. chapter 75
     appeal rights.     IAF, Tab 2 at 2–5.      The order directed the appellant to file
     evidence or argument raising a nonfrivolous allegation of jurisdiction over his
     appeal within 15 days. Id. at 5. The appellant failed to respond to the order, or to
     the agency’s motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 4
     at 6-9.
¶4         Thereafter,    without    holding   the   appellant’s   requested   hearing,   the
     administrative judge issued an initial decision dismissing the appeal for lack of
     jurisdiction.    IAF, Tab 5, Initial Decision (ID).     He found that, in failing to
     submit evidence and argument in support of jurisdiction, the appellant conceded
     that he could not establish jurisdiction over the appeal. ID at 3.
¶5         The appellant has filed a petition for review of the initial decision, and the
     agency has opposed the petition for review. Petition for Review (PFR) File,
     Tabs 1, 3.

                       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). An appellant who makes a
     nonfrivolous allegation of jurisdiction is entitled to a hearing at which he must
                                                                                       4

     then prove jurisdiction by a preponderance of the evidence.              Garcia v.
     Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en
     banc); see 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7        Although not raised by the appellant on review, we find that the
     administrative judge erred in dismissing the appeal for lack of jurisdiction based
     on the appellant’s “concession” in failing to respond to the acknowledgment
     order, without any further analysis of whether the appellant raised a nonfrivolous
     allegation of jurisdiction over the appeal. ID at 3. In so doing, the administrative
     judge cited Hubbard v. Merit Systems Protection Board, 605 F.3d 1363, 1365
     (Fed. Cir. 2010), a decision addressing whether an appellant established that her
     appeal was timely filed or that good cause existed for her filing delay. Here,
     however, the pertinent issue is jurisdiction, rather than timeliness, and a finding
     of jurisdiction, or a lack thereof, is a legal conclusion that is not subject to
     stipulation or concession by the parties.          See Roche v. Department of
     Transportation, 110 M.S.P.R. 286, ¶ 11 (2008) (finding that an agency’s assertion
     that the Board had jurisdiction over an appeal did not relieve the Board of the
     responsibility of making its own determination on the subject), aff’d, 596 F.3d
     1375 (Fed. Cir. 2010); McCarty v. Environmental Protection Agency, 108
     M.S.P.R. 45, ¶ 10 (2008) (finding that an agency’s concession that the Board had
     jurisdiction over an appeal had no legal effect because a finding of jurisdiction is
     a legal conclusion not subject to stipulation by the parties); see also Ney v.
     Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (finding that the issue of
     the Board’s jurisdiction is always before the Board, and it may be raised by either
     party or sua sponte by the Board at any time).
¶8        However, we find that the administrative judge’s error was not prejudicial
     to the appellant’s substantive rights, because based on our review of the parties’
     submissions below and on review, the appellant failed to raise a nonfrivolous
     allegation of jurisdiction over his appeal.      Panter v. Department of the Air
     Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
                                                                                         5

      prejudicial to a party’s substantive rights provides no basis for reversal of an
      initial decision).
¶9          As a nonpreference eligible in the excepted service, the appellant was
      entitled to appeal to the Board if, at the time of his termination, he was an
      “employee” under 5 U.S.C. § 7511(a)(1)(C).           Martinez v. Department of
      Homeland Security, 118 M.S.P.R. 154, ¶ 5 (2012); Ellefson v. Department of the
      Army, 98 M.S.P.R. 191, ¶ 8 (2005).        That section defines an employee as an
      individual who (1) is not serving a probationary or trial period under an initial
      appointment pending conversion to the competitive service; or (2) has 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)(i)-(ii).
¶10         We find that the appellant failed to raise a nonfrivolous allegation that he is
      an employee under 5 U.S.C. § 7511(a)(1)(C)(i), because even assuming that he
      was serving under an initial appointment pending conversion to the competitive
      service, he failed to nonfrivolously allege that he was not serving a trial period at
      the time of his termination. See Martinez, 118 M.S.P.R. 154, ¶ 6. The agency
      terminated the appellant after approximately 1 year and 2 months of his Recent
      Graduates Program appointment of up to 2 years and 120 days, the entire duration
      of which was a trial period. IAF, Tab 4 at 38, 42, Tab 1 at 8. Furthermore, the
      appellant failed to nonfrivolously allege, either below on review, that he had prior
      service that could be tacked on to his Recent Graduates Program service so as to
      complete his trial period.     IAF, Tab 1; PFR File, Tab 1; see McCrary v.
      Department of the Army, 103 M.S.P.R. 266, ¶¶ 9-15 (2006) (finding that an
      individual whose excepted service Federal Career Intern Program appointment
      was terminated during its 2-year trial period had appeal rights under
      section 7511(a)(1)(C)(i) because she was entitled to credit toward completion of
      the trial period based on her prior service).
                                                                                         6

¶11           Likewise, based on our review, the record does not indicate that the
      appellant had prior service that could be tacked on to complete his trial period.
      An individual’s prior service may be tacked toward the completion of a trial
      period in the excepted service where the prior service was: (1) performed in the
      same agency; (2) performed in the same line of work; and (3) completed with no
      more than 1 break in service of less than 30 days. Martinez, 118 M.S.P.R. 154,
      ¶ 6.     Here, the Standard Form 50 (SF-50) documenting the appellant’s
      appointment to the Claims Representative position reflects a service computation
      date of May 31, 2014, approximately 2 months prior to his Recent Graduates
      Program appointment to the Claims Representative Position. IAF, Tab 4 at 42.
      However, even assuming that the appellant served in another position that
      qualified for tacking for approximately 2 months, these additional 2 months of
      service would be insufficient to complete his trial period, which was at least
      2 years. Id. The agency also submitted SF-50s indicating that the appellant had
      approximately 2 months of prior service with the agency between January 26,
      2014, and March 22, 2014, under a term appointment to a part-time Personal
      Assistant position. IAF, Tab 4 at 48, 52. However, this service cannot be tacked
      towards the completion of the appellant’s trial period, because there was a break
      in     service   of   greater   than   30   days.      IAF,    Tab   42,   48;   see
      Martinez, 118 M.S.P.R. 154, ¶ 6. For this reason, and for the reasons discussed
      above, the appellant failed to nonfrivolously allege that he is an employee under 5
      U.S.C. § 7511(a)(1)(C)(i).
¶12           Similarly, we find that the appellant failed to nonfrivolously allege that he
      qualifies as an employee under 5 U.S.C. § 7511(a)(1)(C)(ii). The appellant has
      not alleged, either below or on review, that he had 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. IAF, Tab 1, PFR File, Tab 1;
      see 5 U.S.C. § 7511(a)(1)(C)(ii). Moreover, our review of the record does not
      reflect that the appellant had such service. IAF, Tab 4.
                                                                                       7

¶13         For the first time on review, the appellant contends that his appointment
      under the Recent Graduates Program did not begin until May 27, 2015, and that
      he served in the Claims Representative position under another unspecified
      appointment between July 2014 and his Recent Graduates Program appointment.
      PFR File, Tab 1 at 4. Based on these alleged facts, the appellant contends that the
      Board has jurisdiction over his appeal. Id. He does not explain his failure to
      respond to the acknowledgment order or the agency’s motion to dismiss below.
      PFR File, Tab 1.      Nevertheless, because the appellant alleges that his new
      argument implicates the Board’s jurisdiction over the appeal, and the issue of
      jurisdiction is always before the Board and may be raised by any party or sua
      sponte by the Board at any time during a Board proceeding, we will consider it.
      See Lovoy v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30
      (2003).   Even assuming that, contrary to the appellant’s SF-50 in the record
      below, IAF, Tab 4 at 42, his appointment under the Recent Graduates Program
      did not begin until May 27, 2015, this would fail to raise a nonfrivolous
      allegation that he qualified as an employee under 5 U.S.C. § 7511(a)(1)(C)(i) or
      (ii). Therefore, we find that the appellant’s new argument on review does not
      raise a nonfrivolous allegation of jurisdiction over his appeal.
¶14         In sum, for the reasons discussed above, we affirm the initial decision
      dismissing the appellant’s appeal for lack of jurisdiction, as modified to clarify
      that the appeal is dismissed on the ground that the appellant failed to raise a
      nonfrivolous allegation of jurisdiction over the appeal.

                      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:
                                                                                  8

                             U.S. 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
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
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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.
