                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEREMIAH P. TRAPP,                              DOCKET NUMBER
                   Appellant,                        CH-315H-15-0343-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 28, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Britton Jobe, Springfield, Esquire, Missouri, for the appellant.

           Thomas Kent Smith, Esquire, North Little Rock, Arkansas, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.           We
     AFFIRM the initial decision with two modifications.          First, we MODIFY the
     initial decision insofar as it characterized the appellant as a probationary
     employee and clarify that the appellant, who was in the excepted service, was not
     serving a probationary period. Second, we MODIFY the jurisdictional analysis
     under 5 U.S.C. § 7511 but still find that the appellant lacked a statutory right of
     appeal to the Board.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The record reflects that, effective April 20, 2014, the agency appointed the
     appellant, a nonpreference eligible, to an excepted-service position as a Social
     Worker, GS-0185-12, under the authority of 38 U.S.C. § 7401(3). 2 Initial Appeal
     File (IAF), Tab 7 at 31-32.        The appellant’s appointment was subject to
     completion of a 1-year initial trial period. Id. Prior to the end of the trial period,
     the agency informed the appellant that he would be terminated from his position
     effective February 20, 2015, due to unacceptable performance. Id. at 20-22. On
     February 19, 2015, the appellant resigned effective February 20, 2015. Id. at 19.

     2
        The Standard Form 50s documenting the appellant’s appointment and separation
     reflect that he was appointed to the excepted service. Initial Appeal File (IAF), Tab 7
     at 18, 30-33. As discussed below, however, the appellant asserts on review that his
     appointment may have been in the competitive service.
                                                                                            3

¶3         On March 20, 2015, the appellant filed an adverse action appeal with the
     Board and requested a hearing. IAF, Tab 1. He characterized the adverse action
     as a termination from his competitive-service position during his probationary
     period and alleged that the agency had taken the action in retaliation for
     whistleblowing, subjected him to a hostile work environment on the basis of his
     gender, and failed to follow the procedures set forth in 5 C.F.R § 315.805 in
     effecting his termination. 3 Id. at 4, 6. The administrative judge issued orders on
     jurisdiction, advising that the Board generally lacks jurisdiction over terminations
     of a competitive-service employee during his probationary period and over
     voluntary actions, such as resignations, and ordered him to provide evidence and
     argument to establish Board jurisdiction over his appeal. 4 IAF, Tabs 4, 9. The
     parties responded to both orders. IAF, Tabs 6-7, 10-11.
¶4         Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction, explaining that the Board lacks jurisdiction
     over voluntary actions, such as resignations, and, even if the appellant could show
     that the agency subjected him to an appealable adverse action, he was not an
     “employee” with adverse action appeal rights under 5 U.S.C. § 7511(a)(1)(C). 5

     3
       An agency that wishes to terminate a competitive-service probationary employee for
     preappointment reasons must follow the procedures of 5 C.F.R. § 315.805.
     4
       The administrative judge notified the appellant of the requirements for proving
     jurisdiction over an appeal by an individual in the competitive service under 5 U.S.C.
     § 7511(a)(1)(A). IAF, Tab 4. As discussed below, however, the appellant was
     appointed to an excepted-service position and, as a nonpreference eligible, the Board’s
     jurisdiction over his appeal is governed by 5 U.S.C. § 7511(a)(1)(C). Nonetheless, this
     adjudicatory error provides no basis to disturb the initial decision because the
     administrative judge set forth the correct jurisdictional burden in the initial decision,
     thus affording the appellant the opportunity to meet his jurisdictional burden in his
     petition for review. IAF, Tab 12, Initial Decision (ID) at 3; see Easterling v. U.S.
     Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).
     5
       In the initial decision, the administrative judge referred to the appellant as a
     probationary employee and found, in part, that he lacked Board appeal rights because he
     was separated during his probationary period. ID at 4, 6. The term “probationary
     period” refers to the first year of service of most employees who are given career or
     career-conditional appointments in the competitive service. See Calixto v. Department
                                                                                       4

     IAF, Tab 12, Initial Decision (ID) at 3-5. She also found that the appellant, as an
     excepted-service appointee, did not have a right to the procedures set forth at
     5 C.F.R. § 315.805 or to appeal his termination on the grounds that it was taken
     for preappointment reasons because those regulatory rights apply only to
     individuals in the competitive service. ID at 4. Lastly, the administrative judge
     found that the Board lacked the authority to consider the appellant’s
     discrimination claims or affirmative defenses absent an otherwise appealable
     action, and that there was no evidence that he had exhausted his administrative
     remedy with the Office of Special Counsel (OSC) as to provide the Board with
     jurisdiction over his whistleblowing claim as an individual right of action appeal.
     ID at 5-6.
¶5         The appellant has filed a petition for review, and the agency has responded
     in opposition. Petition for Review (PFR) File, Tabs 1, 3.
¶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 (Fed. Cir. 1985). Chapter 75 of Title 5 grants the
     Board jurisdiction to hear appeals of certain enumerated adverse actions,
     including removals, taken by an agency against an employee. 5 U.S.C. §§ 7512,
     7513(d); Parrott v. Merit Systems Protection Board, 519 F.3d 1328, 1332 (Fed.
     Cir. 2008). An employee’s voluntary action, such as a resignation, is generally
     not appealable to the Board.       Parrott, 519 F.3d at 1332.      An involuntary
     resignation, however, is equivalent to a forced removal within the Board’s
     jurisdiction under chapter 75. Id. Nonetheless, even if an individual is subjected
     to an appealable adverse action, only an “employee,” as defined under
     section 7511, can appeal the adverse action to the Board. Barrand v. Department
     of Veterans Affairs, 112 M.S.P.R. 210, ¶ 8 (2009). The appellant has the burden


     of Defense, 120 M.S.P.R. 557, ¶ 14 (2014); see also 5 C.F.R. § 315.801. We therefore
     modify the initial decision to clarify that the appellant, who was appointed to the
     excepted service, was not serving a probationary period.
                                                                                      5

     of proof on the issue of jurisdiction, and, when he makes a nonfrivolous
     allegation that the Board has jurisdiction over an appeal, he is entitled to a
     hearing on the jurisdictional question. Lara v. Department of Homeland Security,
     101 M.S.P.R. 190, ¶ 7 (2006); 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶7        As noted above, the administrative judge found that the appellant had failed
     to nonfrivolously allege that his resignation was involuntary because the mere
     fact that an employee is faced with the unpleasant alternatives of resigning or
     being terminated does not make his resulting resignation an involuntary act. ID
     at 3-4 (citing Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir.
     1987)). On review, the appellant argues that the Board has jurisdiction over this
     termination appeal because he submitted his resignation letter after the agency
     already had decided to terminate him. PFR File, Tab 1 at 5. Specifically, he
     contends that he was terminated on February 12, 2015, the date of the
     memorandum informing him that he would be terminated effective February 20,
     2015, and that he did not resign until February 20, 2015. Id.; see IAF, Tab 7
     at 20-21.   We find no merit to this argument.      First, the relevant date of a
     personnel action is the effective date, and the date the agency decided to take the
     action is immaterial to the effective date of the termination.      See Walker v.
     Department of the Army, 119 M.S.P.R. 391, ¶¶ 10-11 (2013). Second, the fact
     that an employee resigns effective the same date as the effective date of his
     termination does not, by itself, establish that his decision to resign was
     involuntary. See, e.g., Green v. Department of Veterans Affairs, 112 M.S.P.R. 59,
     ¶¶ 2, 9, 13 (2009). As such, we discern no basis to disturb the administrative
     judge’s finding that the appellant failed to show that his resignation
     was involuntary.
¶8        Even if the appellant was subjected to an appealable adverse action, the
     administrative judge determined that the Board still would lack jurisdiction over
     his appeal “because a terminated probationary employee has no statutory right of
     appeal to the Board.” ID at 4. As noted above, however, the appellant, who was
                                                                                       6

     in the excepted service, was not a probationary employee.              Further, the
     dispositive issue for jurisdictional purposes is not whether such an individual is a
     probationer; rather, it is whether he is an “employee” within the meaning of
     5 U.S.C. § 7511.    See, e.g., Ramirez-Evans v. Department of Veterans Affairs,
     113 M.S.P.R. 297, ¶ 9 (2010).      To meet the definition of “employee” under
     section 7511 for purposes of Board appeal rights, a nonpreference-eligible
     excepted-service appointee, such as the appellant, must:       (1) not be serving a
     probationary or trial period under an initial appointment pending conversion to
     the competitive service; or (2) have 2 years of current continuous service in the
     same or similar positions.    5 U.S.C. § 7511(a)(1)(C)(i)-(ii).   Here, there is no
     indication, and the appellant does not allege, that he held an initial appointment
     pending conversion to the competitive service.     See IAF, Tab 7 at 31. Further, it
     is undisputed that, when he resigned, the appellant had less than 2 years of
     current continuous service.   See id. at 18, 31.    The record shows that he was
     appointed in April 2014, and was terminated approximately 10 months later, in
     February 2015.     Id. As such, we agree with the administrative judge that the
     appellant had no statutory right of appeal but modify the analysis consistent with
     this paragraph.
¶9        The administrative judge also found that the appellant was not entitled to
     the procedural protections of 5 C.F.R. § 315.805 or to appeal his termination for
     preappointment reasons under 5 C.F.R. § 315.806 because these rights only apply
     to individuals in the competitive service. ID at 4-5. On review, the appellant
     argues that he “may have been” in the competitive service and, accordingly, “may
     have been” entitled both to the procedural protections of 5 C.F.R. § 315.805 and
     to appeal his termination for preappointment reasons. PFR File, Tab 1 at 6-7. He
     asserts that he nonfrivolously alleged that he was appointed to the competitive
     service by marking “competitive service” on his initial appeal form and that the
     administrative judge erred by failing to afford him an evidentiary hearing to
     determine the nature of his appointment. Id. at 5-6. As discussed below, we find
                                                                                         7

      no merit to the appellant’s argument that he was appointed to the competitive
      service or that he was entitled to an evidentiary hearing on the matter.
¶10        Certain medical positions in the Veterans Health Administration are
      governed by Title 38.     Those positions are specifically identified in 38 U.S.C.
      § 7401(1) through (3).    Section (3) covers a wide range of medical positions,
      including social workers. As reflected on the appellant’s Standard Form 50s, the
      agency appointed him to a position as a Social Worker under the authority of
      38 U.S.C. § 7401(3).     IAF, Tab 7 at 31.   All positions identified in 38 U.S.C.
      § 7401 are in the excepted service. Graves v. Department of Veterans Affairs,
      114 M.S.P.R. 245, ¶ 11 (2010).      As such, there is no basis to find that the
      appellant was appointed to the competitive service.        Moreover, the appellant
      acknowledged below that he was appointed to an excepted-service position and
      offered to submit an amended initial appeal form reflecting the correct
      appointment type.        IAF, Tab 6 at 5.      Accordingly, we agree with the
      administrative judge that the appellant was appointed to an excepted-service
      position and, thus, was not entitled to the procedural protections of 5 C.F.R.
      § 315.805 or to appeal his termination for preappointment reasons. ID at 4-5.
¶11        Finally, the appellant does not challenge, and we discern no reason to
      disturb, the administrative judge’s finding that the Board lacks the authority to
      hear his discrimination and retaliation claims absent an otherwise appealable
      action or to hear his whistleblowing claim absent evidence that he has exhausted
      his claim before OSC. 6 See PFR File, Tab 1 at 7.




      6
         The administrative judge afforded the appellant mixed-case review rights. ID
      at 10-11. However, in the absence of Board jurisdiction, this is not a mixed case. We
      have provided the appellant the proper review rights here. See, e.g., Axsom v.
      Department of Veterans Affairs, 110 M.S.P.R. 605, 614-15 (2009).
                                                                                   8

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
        The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the United States Court of Appeals for the
Federal Circuit.
        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 want to request review of the Board’s decision concerning your
claims     of   prohibited   personnel   practices   under   5 U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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
                                                                                9

States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective         websites,     which      can      be     accessed      through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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.
