                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     OLIVER WALKER,                                  DOCKET NUMBER
                 Appellant,                          DC-315H-15-0247-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: January 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Oliver Walker, College Park, Maryland, pro se.

           Sarah S. Tuck, Riverdale, Maryland, 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 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 the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        Effective   January 2014,      the   agency   appointed    the     appellant     to   a
     career-conditional,   competitive    service   position   as   an     Investigation    and
     Compliance Specialist under the hiring authority of 31 U.S.C. § 732(g). Initial
     Appeal File (IAF), Tab 7 at 7-9. In November 2014, less than 1 year after his
     appointment, the agency terminated the appellant. Id. at 10.
¶3        The appellant filed a Board appeal challenging his termination and
     requested a hearing.     IAF, Tab 1.       The administrative judge informed the
     appellant that the Board may lack jurisdiction over his appeal because he was a
     probationer, had not completed 1 year of current continuous service in the
     competitive service without a break in Federal civilian employment of a workday,
     and had not alleged that his termination was based on partisan political reasons,
     marital status discrimination, or matters that occurred prior to his appointment.
     IAF, Tabs 2-3. The agency responded that the Board lacked jurisdiction because
     the appellant accepted his position subject to a probationary period and that it
     reasonably imposed the probationary period.        IAF, Tab 7 at 6.       The appellant
     argued that, because he was appointed as a former Government Accountability
                                                                                             3

     Office (GAO) 2 employee pursuant to 31 U.S.C. § 732(g), he had Board appeal
     rights. IAF, Tab 14 at 5-6.
¶4         Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction because the appellant failed to nonfrivolously
     allege that he had Board appeal rights.          IAF, Tab 15, Initial Decision (ID).
     Specifically, she found that the agency did not exceed its authority by requiring
     the appellant to complete a probationary period and that he did not complete his
     probationary period prior to his termination. 3          ID at 3-4 (citing Shelton v.
     Department of the Air Force, 382 F.3d 1335, 1337 (Fed. Cir. 2004)).                  The
     appellant has filed a timely petition for review in which he reiterates that he has
     Board appeal rights based upon his prior GAO service and requests a
     “jurisdictional hearing on the merits.” Petition for Review (PFR) File, Tab 1. 4
     The agency has filed a response in opposition to the petition for review. PFR
     File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         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


     2
       In 2004, Congress redesignated the General Accounting Office as the Government
     Accountability Office. GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271,
     § 8(a), 118 Stat. 811. The appellant’s service was prior to the redesignation.
     3
        The administrative judge found, and we agree, that the Board does not have
     jurisdiction under 5 C.F.R. § 315.806 because the appellant did not allege that his
     termination was based on marital status, partisan political reasons, or conditions arising
     before his appointment. ID at 3-4. The appellant does not challenge these findings on
     review and we see no reason to disturb them. PFR File, Tab 1.
     4
       Below, the appellant alleged that the agency committed harmful procedural error and
     prohibited personnel practices and that his termination was not in accordance with the
     law. IAF, Tab 1. On review, the appellant does not challenge the administrative
     judge’s finding that, absent an otherwise appealable action, we lack jurisdiction over
     his affirmative defenses. PFR File, Tab 1. We agree with the administrative judge and
     see no reason to disturb this finding. See Penna v. U.S. Postal Service, 118 M.S.P.R.
     355, ¶ 13 (2012).
                                                                                       4

     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. § 7511(a)(1),
     an individual appointed to a competitive service position is an employee with
     Board appeal rights if he: (1) is not serving a probationary or trial period under
     an initial appointment; or (2) has completed 1 year of current continuous service
     under other than a temporary appointment limited to 1 year or less. Calixto v.
     Department of Defense, 120 M.S.P.R. 557, ¶ 7 (2014).           Current continuous
     service is defined as a period of employment or service immediately preceding an
     adverse action without a break in Federal civilian employment of a workday.
     Ellefson v. Department of the Army, 98 M.S.P.R. 191, ¶ 14 (2005). An appellant
     is entitled to a jurisdictional hearing only if he makes nonfrivolous allegations of
     jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
     (Fed. Cir. 2006) (en banc).
¶6        Here, it is undisputed that the appellant did not have 1 year of current
     continuous service prior to his termination. He had previous Government service
     from July 2001 to February 2003, as an Analyst at the GAO and from
     August 2010 to May 2011, as a Paralegal Specialist at the Department of Labor.
     IAF, Tab 7 at 11-14.          The agency, though, did not appoint him until
     January 2014, and terminated him in November 2014. See IAF, Tab 7 at 7, 10,
     12. Thus, he was not continuously employed for at least 1 year. However, the
     appellant argues that he has Board appeal rights under 5 U.S.C. § 7511(a)(1)
     because, as an appointee under 31 U.S.C. § 732(g), he was not serving a
     probationary period. PFR File, Tab 1 at 5-6. The Board has held that, under the
     circumstances of a particular case, an agency may impose a probationary period
     even in the absence of a statutory or regulatory provision requiring one.       See
     Calixto, 120 M.S.P.R. 557, ¶¶ 13-17. For the reasons stated below, we find that,
     contrary to the appellant’s arguments, the agency was entitled to require him to
     serve a 1-year probationary period and that he therefore was a probationary
     employee not entitled to Board appeal rights.
                                                                                      5

¶7        The agency appointed the appellant under the authority of 31 U.S.C.
     § 732(g), which states, “An officer or employee of [GAO] completing at least
     1 year of continuous service under a nontemporary appointment . . . acquires a
     competitive status for appointment to a position in the competitive service.” The
     appellant asserts that, based upon his appointment under this statute, a
     probationary period cannot be required under 5 C.F.R. § 315.801(e), which
     requires probationary periods for, inter alia, appointees under certain special
     appointing authorities. PFR File, Tab 1 at 5-6. The appellant also argues that,
     since the appointment statute does not require a probationary period, the
     regulation, which is inferior to a statute, cannot add an additional requirement in
     the form of a probationary period. Id. at 6.
¶8        We agree with the appellant that 5 C.F.R. § 315.801(e) does not require him
     to serve a probationary period.       That regulation states, “A person who is
     appointed to the competitive service either by special appointing authority or by
     conversion under subparts F or G of this part serves a 1-year probationary period
     unless specifically exempt from probation by the authority itself.”       5 C.F.R.
     § 315.801(e).   In Tschumy v. Department of Defense, 104 M.S.P.R. 488, ¶ 14
     (2007), the Board interpreted this regulation as requiring 1-year probationary
     periods only for those appointed under appointing authorities specified in
     subpart F and subpart G of 5 C.F.R. § 315. The appellant was appointed pursuant
     to 31 U.S.C. § 732(g), which is not among the hiring authorities specified in those
     subparts. Thus, he is correct that he was not required to serve a probationary
     period under 5 C.F.R. § 315.801(e).
¶9        The appellant also argues that, because he was appointed pursuant
     to 31 U.S.C. § 732(g), his case is distinguishable from Shelton, the case that the
     administrative judge cited in support of her finding that he was properly serving a
     probationary period. PFR File, Tab 1 at 5-6; see ID at 4 (citing Shelton, 382 F.3d
     at 1337). He further asserts that, because the appointment statute does not put a
     time limit on when a former employee can apply for a position based upon the
                                                                                      6

      competitive status he acquired by working at the GAO, there also should be no
      time limit on the employee’s Board appeal rights.         PFR File, Tab 1 at 6.
      We disagree.
¶10        In Shelton, the U.S. Court of Appeals for the Federal Circuit held that the
      agency did not exceed its authority by requiring the appellant to serve a 1-year
      probationary period where it hired her after a 13-year break in service, even
      though she previously had served in the same position for almost 7 years.
      Shelton, 382 F.3d at 1336-37.     Similarly, the Board has held that, where an
      appellant was appointed to a competitive service position pursuant to 10 U.S.C.
      § 1705(g), a statutory direct-hire authority that does not specifically require a
      probationary period, the agency had the authority to require her to serve a 1-year
      probationary period. Calixto, 120 M.S.P.R. 557, ¶¶ 13-17. In so holding, the
      Board concluded that the absence of an affirmative statutory or regulatory
      provision requiring a career-conditional appointee to the competitive service to
      serve a probationary period did not preclude an agency from imposing a
      probationary period. Id., ¶ 13.
¶11        Similar to the statute in Calixto, the appointment statute here does not
      affirmatively require a probationary period. See 31 U.S.C. § 732(g). However,
      similar to Calixto, both the appellant’s Standard Form 50 and selection letter
      indicated that his appointment was subject to a 1-year probationary period. IAF,
      Tab 7 at 7-8. Accordingly, we find that the appellant was fully informed of the
      probationary period when he accepted the position.        See Shelton, 382 F.3d
      at 1337. Therefore, the appellant had a gap of almost 3 years between his most
      recent separation from Federal service and the appointment at issue and none of
      his prior service was in the same position. IAF, Tab 7 at 10, 12, 14. Thus, the
      agency had legitimate reasons for requiring a probationary period.            See
      Calixto, 120 M.S.P.R. 557, ¶ 14 (stating that service of either a probationary or
      trial period is the preferred practice in Federal employment because such a period
      allows the agency to evaluate an individual’s conduct and performance to
                                                                                        7

determine if an appointment to the civil service should become final).                We
therefore conclude that the agency acted within its authority by requiring a
probationary period under the circumstances of this case. Accordingly, we agree
with the administrative judge that the appellant has failed to nonfrivolously allege
that he was an employee under 5 U.S.C. § 7511(a)(1). 5 See Calixto, 120 M.S.P.R.
557, ¶ 17.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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 U.S. 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 U.S. Code, at our

5
  The appellant appears to assert that his arguments are entitled to greater deference
because he is pro se. PFR File, Tab 1 at 5. As previously stated, the Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction by law,
rule, or regulation. Maddox, 759 F.2d at 10. Thus, even if we wished to do so, we are
without discretion to defer to the appellant’s arguments or find jurisdiction where, as
here, none exists.
                                                                                 8

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 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.
