                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     QUINCY RAY HAYNES,                              DOCKET NUMBER
                  Appellant,                         DC-315H-15-0871-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: November 23, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Quincy Ray Haynes, Norfolk, Virginia, pro se.

           Karen L. Saxton, New Cumberland, Pennsylvania, 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 for lack of jurisdiction his appeal of his termination during his
     probationary period. 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 interpretation of statute or regulation or the

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, we AFFIRM the initial decision. Specifically, we MODIFY the
     initial decision to further elaborate on the evidence and argument that the
     appellant submitted in support of his case and to explain why this evidence and
     argument is insufficient to constitute a nonfrivolous allegation of jurisdiction.
¶2         The agency terminated the appellant from his WG-5 Distribution Process
     Worker position for alleged unsatisfactory performance.         Initial Appeal File
     (IAF), Tab 1 at 8-10.       After he appealed his termination to the Board, the
     administrative judge issued an order that informed him that it appeared that his
     appeal was not within the Board’s jurisdiction. She notified him that he had the
     burden of proving that the Board had jurisdiction over his appeal, provided him
     with notice of what he had to prove to establish jurisdiction, and ordered him to
     submit evidence and argument establishing the Board’s jurisdiction over his
     appeal. IAF, Tab 2. She further informed the appellant that he only would be
     entitled to a hearing if he made a nonfrivolous allegation of fact that, if proven,
     could establish jurisdiction over his appeal. Id. at 3. When the appellant did not
     respond, the administrative judge issued a second order and again directed the
     appellant to furnish evidence and argument establishing Board jurisdiction over
     his appeal.   IAF, Tab 3.    The appellant did not respond to the second order.
     Thereafter, the administrative judge dismissed the appeal for lack of jurisdiction,
                                                                                       3

     finding that the appellant failed to respond to her orders and that there was no
     evidence in the record establishing that the appeal was within the Board’s
     jurisdiction. IAF, Tab 6, Initial Decision.
¶3        Because the appellant was terminated from a competitive service position,
     he must satisfy the definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)
     to have Board appeal rights under 5 U.S.C. chapter 75. Henderson v. Department
     of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To qualify as an “employee,” the
     appellant must show that he is not serving a probationary period or has completed
     1 year of current continuous service under other than a temporary appointment
     limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); McCormick v. Department of
     the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002).         The appellant here
     served only 2 months of his 1-year probationary period. The service computation
     date on the Standard Form 50 documenting the appellant’s termination indicates
     that the appellant has, at most, approximately 9 months of total Federal service.
     IAF, Tab 1 at 8.     Therefore, the appellant does not meet the definition of
     “employee” at 5 U.S.C. § 7511(a)(1)(A), and he does not have the right to appeal
     his termination to the Board under 5 U.S.C. §§ 7513(d) and 7701.
¶4        A probationary employee in the competitive service who, like the appellant,
     was terminated for post-appointment reasons, can bring an appeal of his
     termination to the Board, but only if he was discriminated against because of his
     marital status or partisan political affiliation. Henderson, 114 M.S.P.R. 149, ¶ 9;
     Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 8 (2007). The appellant
     did not claim in his appeal, and does not claim in his petition for review, that the
     termination was based on marital status or partisan political discrimination. The
     administrative judge informed the appellant that he must make such an allegation
     in order to establish the Board’s jurisdiction over the appeal, but the appellant
     did not respond to either of her orders.      The appellant instead argues that the
     allegations of unacceptable performance were unfounded and his termination
     based on those allegedly unfounded reasons was improper.          IAF, Tab 1 at 6;
                                                                                  4

Petition for Review File, Tab 1 at 4. These arguments, however, relate to the
reasons underlying the termination and not the issue of Board jurisdiction, and
thus provide no basis to disturb the initial decision. See Rivera v. Department of
the Navy, 114 M.S.P.R. 52, ¶ 7 (2010) (finding that, in an appeal of a termination
during a probationary period, the merits of the agency’s decision are not before
the Board).

                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 U.S. 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. Of particular relevance is the court’s “Guide
                                                                                 5

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 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.
