                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FRANK C. DESANTIS,                              DOCKET NUMBER
                   Appellant,                        NY-0752-14-0074-I-1

                  v.

     DEPARTMENT OF                                   DATE: October 10, 2014
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Frank C. DeSantis, Newtown, Connecticut, pro se.

           Alfred R. Johnson, Jr., Esquire, Jamaica, New York, 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant, a nonpreference eligible, received an excepted service
     appointment at the agency’s Federal Aviation Administration (FAA) subject to
     completion of a 1-year initial probationary period. Initial Appeal File (IAF), Tab
     7 at 32. He was terminated within 1 month for alleged violations of the agency’s
     rules regarding outside employment and for holding a financial interest from a
     prohibited source. Id. at 23-24.
¶3        In this appeal, the appellant alleged that his outside employment was
     permitted by regulation and his termination was in reprisal for whistleblowing.
     IAF, Tab 1 at 17. He argued that the agency violated his rights under 5 C.F.R.
     §§ 315.805 and 315.806 because his termination was based on pre-appointment
     reasons.
¶4        The administrative judge issued an initial decision finding that the
     appellant did not establish Board jurisdiction over this appeal because he was a
                                                                                            3

     probationary employee in the excepted service. 2 ID at 4-5, 7. The appellant has
     submitted a timely petition for review. Petition for Review (PFR) File, Tab 1.
     The agency has responded to the petition for review, and the appellant has
     replied. PFR File, Tabs 5-6.

     The administrative judge correctly concluded that the Board lacks jurisdiction
     over the issue of whether the appellant’s termination from the excepted service
     was for pre-appointment reasons.
¶5         On petition for review, the appellant repeats his argument that he has the
     same right as a competitive service employee to challenge his termination on the
     basis that it was for pre-appointment reasons. 3 See IAF, Tab 14 at 2-8, Tab 16 at
     2-3; PFR File, Tab 2 at 3-13, Tab 3 at 3, Tab 6 at 5-7. However, we find that the
     administrative judge correctly concluded that the Board lacks jurisdiction over
     this appeal.
¶6         The Board’s jurisdiction is not plenary; it 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 appellant bears
     the burden of establishing Board jurisdiction by a preponderance of the evidence.
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 642-43 (Fed. Cir.
     1985); Rosell v. Department of Defense, 100 M.S.P.R. 594, ¶ 7 (2005), aff’d,


     2
       Because she found that the appellant failed to raise a nonfrivolous allegation of
     jurisdiction, the administrative judge did not hold the requested hearing. IAF, Tab 22,
     Initial Decision (ID) at 1.
     3
       The appellant does not dispute the administrative judge’s finding that the Board does
     not have jurisdiction over this appeal under chapter 75 of Title 5. PFR File, Tab 2 at 3.
     Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal to the Board
     from an adverse action such as a removal. Hartman v. Merit Systems Protection Board,
     77 F.3d 1378, 1380 (Fed. Cir. 1996); Lamberson v. Department of Veterans Affairs,
     80 M.S.P.R. 648, ¶ 33 (1999); see 5 U.S.C. §§ 7511(a)(1), 7512(1). Further, the
     appellant does not dispute the administrative judge’s dismissal of his age discrimination
     claim. PFR File, Tab 2 at 3. The Board lacks jurisdiction over claims of discrimination
     in the absence of an otherwise appealable action. See Hardy v. U.S. Postal Service,
     72 M.S.P.R. 71, 74 (1996), aff’d, 114 F.3d 1207 (Fed. Cir. 1997) (Table). We see no
     basis to disturb the administrative judge’s findings on review.
                                                                                         4

     191 F. App’x 954 (Fed. Cir. 2006); 5 C.F.R. § 1201.56(a)(2)(i). An appellant is
     entitled to a jurisdictional hearing only if he makes a nonfrivolous allegation of
     Board jurisdiction, i.e., an allegation of fact which, if proven, could establish a
     prima facie case that the Board has jurisdiction over the matter at issue. Baldwin
     v. Department of Veterans Affairs, 109 M.S.P.R. 392, ¶ 11 (2008).                 The
     administrative judge found that the appellant did not make a nonfrivolous
     allegation of Board jurisdiction; thus, she denied his request for a hearing. ID at
     1. We agree.
¶7          Where a probationary employee is removed from a position in the
     competitive service for a pre-appointment reason, he has a regulatory right to
     appeal the termination to the Board on the ground that, in effectuating the
     termination, the agency failed to give him advance written notice of the proposed
     action with reasons for that action, a reasonable time for filing a written answer,
     and notice of the agency’s decision at the earliest practicable date, as required
     by 5 C.F.R. § 315.805. Munson v. Department of Justice, 55 M.S.P.R. 246, 250
     (1992); see 5 C.F.R. §§ 315.805, 315.806(c). However, nonpreference-eligible
     excepted service probationary employees do not have the right to appeal to the
     Board    on    this   basis.     See   Barrand     v.   Department     of   Veterans
     Affairs, 112 M.S.P.R. 210, ¶ 13 (2009).         We agree with the administrative
     judge’s finding that these regulations do not apply to the appellant’s termination
     because he was an excepted service, not a competitive service, employee. 4 ID at
     4-5.

     4
       The administrative judge stated in the initial decision that the “plain language” of
     49 U.S.C. § 40122(g)(2) provides that Title 5 does not apply to employees of the FAA
     and that there is no exception listed for 5 C.F.R. §§ 315.805 or 315.806. ID at 5. The
     administrative judge erred in making this finding because the Ford Act reestablished
     certain Board appeal rights for FAA employees. See 49 U.S.C. § 40122(g)(2);
     Goldberg v. Department of Transportation, 97 M.S.P.R. 441, ¶ 8 (2004) (the provisions
     of Title 5 do not apply to the FAA personnel management system except for certain
     enumerated exceptions). Nevertheless, the administrative judge’s finding constitutes
     harmless error because sections 315.805 and 315.806 do not apply to this appeal
     because the appellant was in the excepted service. Panter v. Department of the Air
                                                                                          5

¶8         The appellant argues that the Board has jurisdiction because all FAA
      employees are considered to be in the competitive service pursuant to the Wendell
      H. Ford Aviation Investment and Reform Act for the 21st Century (the Ford Act).
      See PFR File, Tab 2 at 3-13, Tab 3 at 3, Tab 6 at 5-7. We disagree.
¶9         As a result of the Department of Transportation and Related Agencies
      Appropriations Act (the DOT Act), Board appeal rights for FAA employees were
      eliminated   effective    April   1,   1996.       Hankins     v.   Department      of
      Transportation, 118 M.S.P.R. 499, ¶ 5 (2012). In 2000, Congress passed the Ford
      Act, which restored to FAA employees the Board appeal rights they had as of
      March 31, 1996. Giove v. Department of Transportation, 89 M.S.P.R. 560, ¶ 9
      (2001), aff’d, 50 F. App’x 421 (Fed. Cir. 2002); Miller v. Department of
      Transportation, 86 M.S.P.R. 293, ¶¶ 9, 11-13 (2000).         Effective February 14,
      2012, the Ford Act provision codified at 49 U.S.C. § 40122(g)(3) was amended.
      See Hankins, 118 M.S.P.R. 499, ¶ 7. However, nothing in the Ford Act or its
      amendment provides that all FAA employees are within the competitive service.
      See id.; see also 49 U.S.C. § 40122(g)(2)-(3).

      The administrative judge properly found that the appellant had not exhausted his
      Office of Special Counsel (OSC) remedy as to his individual right of action (IRA)
      appeal.
¶10        The appellant argues that he does not have to exhaust his remedies before
      the OSC for the Board to take jurisdiction over his whistleblower claim. PFR
      File, Tab 2 at 13. The administrative judge found that because the appellant did
      not satisfy his exhaustion burden before the OSC, the Board did not have
      jurisdiction over his whistleblower claim. See ID at 6. We agree.
¶11        The Board lacks jurisdiction to review the appellant’s termination as an
      otherwise appealable action, but the appellant may request review of the agency
      action in an IRA appeal under the Whistleblower Protection Enhancement Act


      Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
      party’s substantive rights provides no basis for reversal of an initial decision).
                                                                                         6

      (WPEA). See Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 7
      (2010); Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶ 10
      (2007). The Board has jurisdiction over an IRA appeal if an appellant exhausts
      his administrative remedies before OSC and makes nonfrivolous allegations that:
      (1) he engaged in whistleblowing activity by making a protected disclosure, and
      (2) the disclosure was a contributing factor in the agency’s decision to take or fail
      to take a personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d
      1367, 1371 (Fed. Cir. 2001).
¶12         An appellant filing an IRA appeal has not exhausted his OSC remedy unless
      he has filed a complaint with OSC and either OSC has notified him that it was
      terminating its investigation of his allegations or 120 calendar days have passed
      since he first sought corrective action. Simnitt, 113 M.S.P.R. 313, ¶ 8. In the
      instant case, the appellant filed a complaint dated December 2, 2013 with OSC,
      and OSC sent him an acknowledgment receipt dated December 17, 2013. IAF,
      Tab 15 at 8, 10. At the time that the initial decision was issued, 120 days had not
      passed since he had contacted OSC.        Id.   Further, the appellant provided no
      evidence that OSC had notified him that it had terminated its investigation. ID at
      6.
¶13         The Board’s practice is to adjudicate an appeal that was premature when it
      was filed but becomes ripe while pending with the Board. Jundt v. Department
      of Veterans Affairs, 113 M.S.P.R. 688, ¶ 7 (2010). Because 120 calendar days
      have passed since the appellant first sought corrective action with OSC, it appears
      that he has exhausted his administrative remedies and the Board may now have
      jurisdiction to adjudicate his IRA appeal. Id. We therefore FORWARD the case
      to the regional office for docketing as an IRA appeal.       However, we find no
      reason to disturb the administrative judge’s initial decision in this appeal and
      therefore deny the petition for review.
                                                                                     7

      The administrative judge did not commit harmful error by rejecting the
      appellant’s filings as untimely.
¶14        The appellant argues that the administrative judge mistakenly rejected two
      of his submissions as untimely. PFR File, Tab 2 at 4. The administrative judge
      issued an order dated February 11, 2014, rejecting evidence received from the
      appellant, stating that it was untimely because it was received on February 6,
      2014. IAF, Tab 24.
¶15        Determining when to close the record is within the sound discretion of the
      administrative judge. Montreuil v. Department of Air Force, 55 M.S.P.R. 685,
      691 (1992). Provided that the date chosen to close the record complies with the
      requirements of fairness and notice, evidence received after the closing date
      should not be considered. Id.
¶16        The administrative judge issued an order requiring the parties to submit
      evidence to be received by January 30, 2014. IAF, Tab 18 at 2-3. The agency did
      not submit any evidence after the order was issued. The appeal file includes the
      following submissions from the appellant received by the administrative judge
      before the record closed: a response dated January 13, 2014, received January 27,
      2014; and a response dated January 25, 2014, received January 27, 2014. IAF,
      Tab 20 at 1, Tab 21 at 1. However, the appellant argues that he also submitted a
      response dated January 27, 2014, which was received by the field office on
      January 29, 2014. PFR File, Tab 1 at 14, Tab 2 at 5. In addition, he claims that
      he submitted a response dated January 28, 2014, that was received by the field
      office on January 30, 2014. PFR File, Tab 1 at 19, Tab 2 at 5. The appellant
      provides evidence confirming that these submissions were received by the
      January 30, 2014 deadline. PFR File, Tab 1 at 32-34.
¶17        The administrative judge’s rejection of these submissions constitutes
      harmless error because these submissions are merely arguments from the
      appellant, which do not prove Board jurisdiction over this appeal. See PFR File,
      Tab 1 at 15-16, 20-21; Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
                                                                                    8

(1981) (the administrative judge’s procedural error is of no legal consequence
unless it is shown to have adversely affected a party’s substantive rights).

                  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.
        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 want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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
                                                                                   9

States   Code,    at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective         websites,          which            can     be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     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 a list of attorneys who have expressed
interest in providing 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.
