                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GEORGE PAUL BARTON,                             DOCKET NUMBER
                  Appellant,                         NY-0752-16-0198-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 21, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           George Paul Barton, Buffalo, New York, pro se.

           Jeffrey L. Whiting, Esquire, Buffalo, New York, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The    appellant,   a   preference   eligible,   received   an   excepted-service
     appointment to the position of Medical Support Assistant, GS-5, effective
     August 9, 2015, subject to completion of a 1-year trial period. Initial Appeal File
     (IAF), Tab 10 at 8, 13. Prior to the completion of his trial period, however, the
     agency terminated him effective March 11, 2016, due to unacceptable conduct.
     Id. at 17.    The appellant timely appealed the termination to the Board and
     requested a hearing.      IAF, Tab 1 at 1-2.      In an acknowledgment order, the
     administrative judge provided the appellant with jurisdictional notice of the
     requirements for establishing that he was an “employee” with Board appeal rights
     under 5 U.S.C. chapter 75 and afforded him an opportunity to respond. 2 IAF,


     2
       Although the appellant was a preference eligible appointed to the excepted service, the
     acknowledgment order provided the jurisdictional notice applicable to individuals in the
     competitive service. IAF, Tab 2 at 2-5. The initial decision cured the defective notice,
     however, by correctly informing the appellant of what he must do to establish
     jurisdiction as a preference-eligible “employee” in the excepted service and affording
     him an opportunity to establish jurisdiction on review. IAF, Tab 12, Initial Decision
     at 2-4; Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 8
     (2007).
                                                                                        3

     Tab 2 at 2‑5. In response, the appellant asserted that he was confused about why
     he was terminated and, further, that he had not been allowed to have any union
     representation. IAF, Tab 3 at 4.
¶3        In an initial decision based on the written record, the administrative judge
     found that the appellant failed to nonfrivolously allege that he was an “employee”
     with appeal rights to the Board under 5 U.S.C. § 7511(a)(1)(B) and dismissed the
     appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID). The appellant
     has filed a petition for review of the initial decision, and the agency has
     responded in opposition. Petition for Review (PFR) File, Tabs 1, 3. On review,
     the appellant asserts only that he is confused about what he did wrong and that he
     was told to file an appeal to get his job back. PFR File, Tab 1 at 5.
¶4        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, 10 (Fed. Cir. 1985). An individual who meets the
     definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
     challenge his removal from the Federal service by filing an appeal with the
     Board.   Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9
     (2011); see 5 U.S.C. §§ 7512(1), 7513(d). The definition of “employee” includes
     “a preference eligible in the excepted service who has completed 1 year of current
     continuous service in the same or similar positions” in an Executive
     agency. 5 U.S.C. § 7511(a)(1)(B)(i).
¶5        Here, the appellant, a preference eligible, served in his excepted-service
     appointment for less than 1 year—from August 9, 2015, to March 11, 2016—and
     he has not shown or alleged that he has prior service that could be tacked onto his
     current service. 3 IAF, Tab 10 at 8, 10-11, 17, 41. Thus, as the administrative



     3
       In the initial decision, the administrative judge cited the incorrect dates of the
     appellant’s appointment and termination. Compare ID at 2, with IAF, Tab 10 at 8, 17.
     This error, however, did not affect the outcome of the case and provides no basis for
                                                                                      4

judge correctly determined, the appellant does not meet the statutory definition of
an “employee” with appeal rights to the Board. ID at 4. Because the appellant is
not an “employee” under 5 U.S.C. § 7511(a)(1)(B), we agree with the
administrative judge’s finding that the Board lacks jurisdiction over this appeal.
See Allen v. Department of the Navy, 102 M.S.P.R. 302, ¶ 9 (2006).                 The
appellant’s contentions on review provide no basis to disturb this finding.

                  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 website, http://www.mspb.gov/appeals/uscode.htm.               Additional
information is available at the court’s website, www.cafc.uscourts.gov.


reversal of the initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984).
                                                                                 5

      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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
