                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-3264

                                 CLARA A. ALVAREZ,

                                                            Petitioner,

                                           v.

                         DEPARTMENT OF THE TREASURY,

                                                            Respondent.


      Clara A. Alvarez, of Freedom, Maine, pro se.

       Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2008-3264

                                CLARA A. ALVAREZ,

                                                Petitioner,

                                           v.

                           DEPARTMENT OF THE TREASURY,

                                                Respondent.

    Petition for review of the Merit Systems Protection Board in PH0731070553-I-1
                                 and PH315H070436-I-1.
                             ___________________________

                            DECIDED: November 6, 2008
                            ___________________________


Before BRYSON and DYK, Circuit Judges, and PATEL, District Judge. *

PER CURIAM.

                                         DECISION

      Clara A. Alvarez petitions for review of a decision of the Merit Systems Protection

Board dismissing her appeal from her removal from employment with the Department of

the Treasury. We affirm.




   ∗ The Honorable Marilyn Hall Patel, District Judge, United States District Court for
the Northern District of California, sitting by designation.
                                   BACKGROUND

        Ms. Alvarez was hired on May 30, 2006, to the position of Revenue Officer with

the Internal Revenue Service (“IRS”). Her appointment was subject to the completion of

a one-year probationary period with the agency and a limited background investigation.

The background investigation revealed, among other things, that prior to her

employment with the agency, while she was working for the State of Maine as a Tax

Examiner, Ms. Alvarez had been suspended from duty for inappropriately accessing

state and federal tax information. Following the background investigation, Ms. Alvarez

was notified, on May 7, 2007, that she would be terminated during her probationary

period for “conduct unbecoming or not suitable for IRS employment.” She was advised

that she had seven calendar days from receipt to provide a written reply to the letter.

She received a copy of the background investigation report on May 10, 2007, and

submitted a timely written reply to the agency’s letter on May 14, 2007. On May 22,

2007, Ms. Alvarez’s employment with the agency was terminated, effective May 24,

2007.

        Ms. Alvarez filed two appeals with the Merit Systems Protection Board

challenging the agency’s decision to terminate her employment. The appeals were

consolidated and the administrative judge assigned to the case conducted a hearing.

Following the hearing, the administrative judge dismissed the appeals on the ground

that the Board lacked jurisdiction over Ms. Alvarez’s termination. The administrative

judge rejected Ms. Alvarez’s assertion that the Board could assert jurisdiction on the

ground that she had been terminated based on an unsuitability determination pursuant

to 5 C.F.R. § 731 (2007). Instead, the administrative judge concluded that Ms. Alvarez




2008-3264                                  2
had been terminated under 5 C.F.R. § 315 (2007) for conduct based in whole or in part

on conditions arising before her appointment. The administrative judge then considered

whether Ms. Alvarez had been afforded the procedural safeguards of 5 C.F.R. §

315.805 (2007), which are applicable to probationary employees who are terminated for

conduct based in part on pre-appointment conditions. Finding that Ms. Alvarez had

been granted her procedural rights, the administrative judge dismissed the appeals.

After the full Board denied Ms. Alvarez’s petition for review, she petitioned for review by

this court.

                                      DISCUSSION

       When a competitive service employee is terminated during a probationary period,

the employee enjoys no statutory right of appeal to the Merit Systems Protection Board.

See 5 U.S.C. §§ 4303(f)(2), 7511(a)(1)(A)(i). Although probationary employees have a

right to appeal pursuant to OPM regulation, that right is available in only a few

circumstances. See 5 C.F.R. § 315.806 (2007). One of those circumstances is when a

probationary employee claims that the termination was based in whole or in part on

conditions arising before appointment. In such a case, the employee’s appeal is limited

to whether the termination was effected in accordance with the procedural requirements

of 5 C.F.R. § 315.805 (2007). See id. § 315.806(c) (2007).

       With respect to the issue raised in her first appeal, Ms. Alvarez argues that she

was not afforded the protections of section 315.805 of the OPM regulations when she

was removed from employment during her probationary period.              Section 315.805

provides that a probationary employee who is subject to termination based in whole or

in part on conditions arising before his or her appointment is entitled to (1) “an advance




2008-3264                                   3
written notice stating the reasons, specifically and in detail, for the proposed action,” (2)

“a reasonable time for filing a written answer to the notice of proposed adverse action

and for furnishing affidavits in support of [that] answer,” and (3) notice of any adverse

decision and the employee’s appeal rights.

       The administrative judge found that Ms. Alvarez was given advance written

notice of the proposed termination on May 7, 2007, and was given seven days within

which to respond.      Although the regulations do not define “reasonable time,” the

administrative judge looked to the amount of time a non-probationary employee is given

to answer the agency’s charges. Under 5 U.S.C. § 7513(b)(2), such an employee is

entitled to “a reasonable time, but not less than 7 days” within which to respond.

Because Ms. Alvarez was allowed seven days to respond to the notice of proposed

adverse action, the administrative judge concluded that the amount of time given to Ms.

Alvarez was reasonable.

       While Ms. Alvarez was given seven days to respond to the termination notice, the

record reflects that she did not receive a copy of the background investigation report

detailing the allegations against her until May 10, 2007. Thus, she had only four days

from the receipt of the report to file her written answer. Although the administrative

judge did not address the adequacy of a four-day notice period, he found that even if

the agency should have granted Ms. Alvarez’s request for additional time to respond,

she failed to show that any error in that regard was prejudicial. In light of the highly

factual nature of those determinations and the administrative judge’s detailed analysis

of the prejudice issue, we uphold the administrative judge’s ruling.




2008-3264                                    4
       In particular, the administrative judge found that even if Ms. Alvarez should have

been given more time for her response, the error was harmless in light of the fact that

Ms. Alvarez filed a thorough response to the notice within the allotted time and failed to

show that the short response time prejudiced her. Ms. Alvarez testified before the

administrative judge that if she had had more time she would have responded to

derogatory allegations made by a former supervisor and would have provided

statements from co-workers at her former job.          The administrative judge noted,

however, that she did respond to the derogatory allegations by providing copies of

performance appraisals she received from her former supervisor and found that Ms.

Alvarez had not shown that her co-workers’ statements would likely have led the agency

to reach a different conclusion.     Because Ms. Alvarez has not made a persuasive

showing that the administrative judge erred in reaching those conclusions as to the

questions of procedural error and the absence of prejudice, we sustain the Board’s

ruling on the procedural protection issue. 1

       With respect to her second appeal, Ms. Alvarez argues that the agency did not

terminate her employment under the authority of section 315.805 of the OPM

regulations, but instead acted pursuant to an adverse suitability determination under

part 731 of the OPM regulations. Because an employee in the competitive service who

is terminated as a result of being found unsuitable for employment in a suitability

determination may appeal that determination to the Board, see 5 C.F.R. § 731.501



   1
       Although the administrative judge dismissed the appeal relating to the asserted
procedural error, we believe the Board’s order should have affirmed, rather than
dismissed, the appeal, as the Board had jurisdiction under 5 C.F.R. § 315.806 (2007) to
address the asserted procedural error; the Board’s ruling against Ms. Alvarez was
based on its determination that she was not entitled to relief on the merits of that claim.


2008-3264                                      5
(2007), Ms. Alvarez contends that the Board had jurisdiction over her appeal on that

ground.

       Ms. Alvarez does not dispute the agency’s authority to terminate probationary

employees for conditions arising before appointment. The OPM regulations make clear

that a suitability determination under part 731 is distinct from an agency action under

part 315, and part 731 specifically provides that “[w]here behavior covered by this part

may also form the basis for a part 752 [adverse actions for non-probationary

employees] or 315 action, agencies may use part 315 or 752, as appropriate, instead of

this part.” 5 C.F.R. § 731.203(d) (2007). Ms. Alvarez argues that the agency conducted

what she terms a “constructive suitability determination.” Contrary to Ms. Alvarez’s

argument, the administrative judge found that the IRS had terminated Ms. Alvarez’s

employment under the authority of section 315.805 of the OPM regulations for

conditions arising before appointment, and that the agency did not conduct a

“constructive” suitability determination.

       Ms. Alvarez bolsters her argument that the agency’s action was a constructive

suitability determination by pointing to a provision of the Internal Revenue Manual that

states “an investigation that yields adverse or derogatory information about an applicant

or an employee requires a suitability determination.”        Internal Revenue Manual

§ 6.731.1.5. She suggests that the Manual provision required that the agency conduct

a suitability determination in her case and thus supports her contention that the agency

did just that.

       We do not find the Manual provision persuasive on this issue. The provision in

question is located in a portion of the Manual that deals specifically with suitability




2008-3264                                   6
determinations; it indicates that if an investigation yields adverse information about an

employee or applicant, a suitability determination should be conducted. The provision

does not, however, have the effect of depriving the agency of its authority under the

OPM regulations to terminate probationary employees for conditions arising prior to

employment, and there is no indication that it was intended to narrow the agency’s

options in such cases.

      To determine whether the agency’s action in this case was a suitability

determination, the administrative judge weighed the evidence on both sides. In favor of

Ms. Alvarez’s argument, the administrative judge recognized that the form authorizing

her background investigation referred to “Part 731,” and that her termination notice used

the words “not suitable.” The administrative judge acknowledged that those references

“could be deemed to implicate” section 731. On the other hand, the administrative

judge noted that “[a]ll of the agency officials who testified stated that the decision to

terminate the appellant was not a suitability determination,” and that a supervisor

testified that “her decision to terminate the appellant was primarily based on the

appellant’s prior conduct during her employment with the State of Maine.”            The

administrative judge also relied on the language of the actual request that Ms. Alvarez

be terminated and the proposed termination notice itself.     The request that she be

terminated referred to “ERG 315.804,” and the notice stated, “[t]his is a notice of

proposed termination issued in accordance with Part 315.805 of the Office of Personnel

Management regulations.”     On balance, the administrative judge decided that the

evidence established that the agency terminated Ms. Alvarez under 5 C.F.R. § 315 and

thus that the Board lacked jurisdiction to review the agency’s decision as a suitability




2008-3264                                  7
determination.   We uphold that finding as supported by substantial evidence and

therefore sustain the Board’s ruling dismissing Ms. Alvarez’s “suitability determination”

appeal.




2008-3264                                  8
