                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CHARLES CHIBUEZE NWANKWO,                       DOCKET NUMBER
                  Appellant,                         DE-315H-15-0083-I-1

                  v.

     DEPARTMENT OF STATE,                            DATE: June 18, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Charles Chibueze Nwankwo, Tucson, Arizona, pro se.

           Anne Joyce, Esquire, and Hollin D. Luh, Washington, D.C., 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
     interpretation of statute or regulation or the erroneous application of the law to

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the facts of the case; the 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, and based on the following
     points and authorities, 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).
¶2        Effective July 13, 2014, the agency appointed the appellant to a Passport
     Specialist position. Initial Appeal File (IAF), Tab 9 at 28. The position was in
     the competitive service and subject to a 1-year probationary period.        Id.   On
     October 17, 2014, the agency informed the appellant that it would be terminating
     his appointment due to misconduct. Id. at 17. The appellant filed an appeal of
     the probationary termination, which the administrative judge dismissed for lack
     of jurisdiction without holding a hearing.     IAF, Tab 13, Initial Decision (ID).
     The administrative judge found that the appellant did not meet the statutory
     definition   of    “employee”   under   5 U.S.C.   § 7511(a)(1)(A)    and   did   not
     nonfrivolously allege that the agency terminated his employment based on marital
     status, political affiliation, or preappointment reasons. ID at 6.
¶3        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.      In his petition for review, the appellant argues that he did not
     commit any misconduct that would warrant the termination of his appointment
     without notice and procedural due process. Id. at 5. The agency has filed an
     opposition to the appellant’s petition for review. PFR File, Tab 3.
¶4        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)
                                                                                        3

     to have Board appeal rights under 5 U.S.C. chapter 75.             See 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 was not serving a probationary
     period or had 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 Standard Form 50 documenting the appellant’s appointment states
     that his appointment was subject to a 1-year probationary period. IAF, Tab 9
     at 28. The parties dispute the exact date that the termination became effective but
     agree that the termination was effective sometime in October 2014. ID at 5 n.3.
     Thus it is undisputed that the appellant’s employment was terminated prior to the
     completion of 1 year of service. In his petition for review, the appellant concedes
     that he was a probationary employee when the agency terminated his
     appointment. PFR File, Tab 1 at 5.
¶5        An appellant who has not served a full year under his appointment can show
     that he has completed his probationary period by tacking on prior service if the
     prior service was:      (1) rendered immediately preceding the probationary
     appointment; (2) performed in the same agency; (3) performed in the same line of
     work; and (4) completed with no more than one break in service of less than
     30 days. Henderson, 114 M.S.P.R. 149, ¶ 10. Alternatively, an employee can
     show that, while he may be a probationer, he is an “employee” with
     chapter 75 appeal rights because, immediately preceding the adverse action, he
     had completed at least 1 year of current, continuous service in federal civilian
     service without a break of a workday. Id. As found by the administrative judge,
     the appellant’s position immediately preceding his appointment by the agency
     was with a private corporation and, therefore, he could not tack his prior service
     to his service with the agency to complete his probationary period and did not
     meet the definition of “employee” because his 1 year of current, continuous
     service was not in the federal civilian service. ID at 5.
                                                                                              4

¶6           A probationary employee may nevertheless have a limited regulatory right
     to appeal if he alleges that his termination was due to discrimination based on
     partisan    political   reasons    or   marital   status,   or   for   conditions   arising
     preappointment and the required procedures were not followed.                 Henderson,
     114 M.S.P.R. 149, ¶ 9; 5 C.F.R. § 315.806. The appellant was terminated based
     on allegations of misconduct that occurred during his probationary period. ID
     at 2.   The appellant did not allege that his termination was based on partisan
     political reasons, marital status, or preappointment reasons. ID at 6. Although he
     continues to argue on review that he did not commit the alleged misconduct, those
     arguments relate to the reasons underlying the termination and are immaterial to
     the jurisdictional issue. See Kellum v. Veterans Administration, 2 M.S.P.R. 65,
     67 (1980).     We find that the administrative judge appropriately dismissed the
     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 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).
                                                                                        5

      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.
