                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEVIN A. WILLIAMS,                              DOCKET NUMBER
                   Appellant,                        DC-3443-14-0498-I-1

                  v.

     FEDERAL RESERVE SYSTEM,                         DATE: October 20, 2014
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Kevin A. Williams, Suitland, Maryland, pro se.

           Miriam Jacks Achtenberg, Esquire, and Kate Parkhurst, Esquire,
             Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to 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         In his appeal, the appellant identified himself as a term employee and
     complained that the agency failed to give him notice that it would not renew his
     contract. Initial Appeal File (IAF), Tab 1. He included a copy of a Release and
     Transition Agreement that indicates, in pertinent part, that his excepted service
     term appointment with the Consumer Financial Protection Bureau ended on
     February 23, 2014.     Id.   The administrative judge gave the appellant specific
     notice of his burden to establish jurisdiction over his appeal, IAF, Tab 3, but the
     appellant did not respond. The agency moved to dismiss the appeal for lack of
     jurisdiction, IAF, Tab 7, and the administrative judge did so, on the written
     record without holding a hearing, IAF, Tab 9.
¶3         The appellant subsequently faxed a letter to the Board in which he indicated
     that he “would like to withdraw the appeal with the right to refile it at a later date
     if needed.” Petition for Review (PFR) File, Tab 1. Later that same day, the
     appellant faxed another letter in which he cited case law that he asserts provides a
     basis for Board jurisdiction over his appeal.       Id.   The agency responded in
     opposition. PFR File, Tab 5.
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¶4        The Board generally will not consider an argument raised for the first time
     in a petition for review absent a showing that it is based on new and material
     evidence not previously available despite the party’s due diligence.       Banks v.
     Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant
     offers no explanation for why he failed to assert these arguments in his appeal
     below, we have not considered them. In any event, our precedent is clear that
     when the appellant’s appointment expired, his employment with the agency ended
     automatically, and was not an adverse action appealable to the Board.          E.g.,
     Murdock-Doughty v. Department of the Air Force, 74 M.S.P.R. 244, 252 (1997);
     see also Berger v. Department of Commerce, 3 M.S.P.R. 198, 199-200 (1980) (the
     separation of a term appointee at the expiration of the term specified at the time
     of appointment is not an appealable adverse action); 5 C.F.R. § 316.303.

                     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).
          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
                                                                                4

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
