                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHRISTOPHER LEE FREDETTE,                       DOCKET NUMBER
                  Appellant,                         PH-315H-15-0136-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 14, 2015
       SECURITY,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Andy Langevin, Essex Junction, Vermont, for the appellant.

           Laura J. Carroll, Saint Albans, Vermont, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his probationary termination appeal for lack of jurisdiction. For the
     reasons set forth below, we GRANT the petition for review, REVERSE the initial



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision, and REMAND the appeal to the regional office for further adjudication
     in accordance with this Order.

                                      BACKGROUND
¶2         On May 18, 2014, the agency appointed the appellant to a GS-7 Operations
     Support Assistant position in the competitive service, subject to completion of a
     1–year probationary period. Initial Appeal File (IAF), Tab 4 at 11-12. At the
     time of his appointment, the appellant did not have prior creditable Federal
     service. See id. at 11 (reflecting a service computation date of May 18, 2014).
     On December 2, 2014, while the appellant still was serving his probationary
     period, the agency notified him that he would be terminated from his position,
     effective immediately, due to his conduct. Id. at 12. The appellant’s termination
     notice specified that he was charged with two felony counts on October 28, 2014,
     and that he made admissions to a detective regarding conduct supporting the
     charges on September 7, 2014.       Id. at 12, 16, 21-24.     The alleged criminal
     conduct occurred in July 2013, prior to his appointment. Id. at 16.
¶3         The appellant filed a Board appeal alleging, in pertinent part, that he was
     terminated for preappointment reasons without the procedures set forth
     at 5 C.F.R. § 315.805. IAF, Tab 1 at 4, 6. The administrative judge issued an
     order requiring the appellant to submit evidence and argument establishing that
     his appeal was within the Board’s jurisdiction. IAF, Tab 2 at 2-5. The agency
     responded to the order, arguing that the appeal should be dismissed for lack of
     jurisdiction, IAF, Tab 4 at 4-6, but the appellant did not respond.
¶4         Without holding the appellant’s requested hearing, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID)
     at 1-4. He found that the appellant failed to raise a nonfrivolous allegation that
     he was terminated for preappointment reasons because the record indicated that
     the appellant was terminated based on “the misconduct of admitting the alleged
                                                                                      3

     criminal conduct to the authorities” and the resulting felony charges, both of
     which occurred after his appointment to the Federal service. ID at 3 & n.*.
¶5        The appellant has filed a petition for review in which he argues that he was
     terminated for preappointment reasons and disputes the merits of the agency’s
     termination decision.   Petition for Review (PFR) File, Tab 1 at 3, Tab 2 at 8,
     Tab 4 at 3. The agency has opposed the petition for review. PFR File, Tab 5.

                                        ANALYSIS
¶6        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).       The appellant bears the
     burden of proving Board jurisdiction by preponderant evidence.            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
     that, if proven, could establish a prima facie case that the Board has jurisdiction
     over the matter at issue. Francis v. Department of the Air Force, 120 M.S.P.R.
     138, ¶ 14 (2013).
¶7        It is undisputed that, as a probationary employee in the competitive service
     with less than 1 year of current continuous service, the appellant has no statutory
     right of appeal to the Board under 5 U.S.C. chapter 75.              See 5 U.S.C.
     § 7511(a)(1)(A); Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005).
     Moreover, he did not allege that his termination was based upon either partisan
     political reasons or marital status, which would give rise to a regulatory right of
     appeal under 5 C.F.R. § 315.806(b). IAF, Tab 1; PFR File, Tabs 1-2, 4.
¶8        However, under 5 C.F.R. § 315.806(c), a probationary employee whose
     termination was based in whole or in part on conditions arising before his
     appointment may appeal his termination to the Board on the ground that it was
     not effected in accordance with the procedural requirements set forth in 5 C.F.R.
     § 315.805.   In such appeals, the merits of the agency’s termination decision
                                                                                            4

      are not before the Board. 2 Hope v. Department of the Army, 108 M.S.P.R. 6,
      ¶ 7 (2008). Rather, if an appellant nonfrivolously alleges that he was terminated
      based in whole or in part on preappointment reasons and that the agency failed to
      afford him the procedural protections of 5 C.F.R. § 315.805, then the Board has
      jurisdiction to determine whether the agency, in fact, failed to follow the
      procedures of 5 C.F.R. § 315.805, and, if so, whether such procedural error was
      harmful. See Hope, 108 M.S.P.R. 6, ¶¶ 7-8.
¶9          We agree with the appellant that his termination was based, at least in part,
      on his alleged preappointment criminal conduct. PFR File, Tab 1 at 3, Tab 2 at 8,
      Tab 4 at 3. The termination notice stated that it was not in the agency’s best
      interest to continue his employment because his “admitted conduct,” which
      occurred prior to his appointment, was contrary to agency core values and “fails
      to demonstrate the integrity and character befitting a federal employee.” IAF,
      Tab 4 at 12. Furthermore, the agency submitted an affidavit from the deciding
      official, who stated that, although the appellant informed his supervisor of his
      arrest at the time that he was charged, the agency did not terminate his
      employment until it subsequently obtained additional information, including
      certain details regarding the alleged criminal conduct at issue. Id. at 9. Thus, a
      reasonable interpretation of the evidence of record establishes that the agency
      terminated the appellant’s employment due, at least in part, to the nature of his
      alleged preappointment conduct.
¶10         The agency argues on review that the appellant’s alleged criminal conduct
      was merely a preexisting condition that affected his postappointment conduct or
      performance and, therefore, he was terminated based solely on postappointment
      reasons. PFR File, Tab 5 at 5-7. We disagree and find that the cases that the
      agency relies upon in support of this argument are distinguishable.                  In
      2
        Therefore, we do not address the appellant’s arguments on review that he has not been
      found guilty yet of the charged felonies and that he was treated differently than a
      similarly situated employee because these contentions relate solely to the merits of the
      termination decision. See PFR File, Tab 1 at 3, Tab 2 at 8, Tab 4 at 3.
                                                                                          5

      Von Deneen v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d,
      837 F.2d 1098 (Fed. Cir. 1987) (Table), the Board found that a probationer was
      terminated for postappointment reasons where he was denied a security clearance
      required for his position, although the basis for denying the clearance was a
      condition that existed prior to his appointment.           Similarly, in Rivera v.
      Department of the Navy, 114 M.S.P.R. 52, ¶ 8 (2010), the Board found that, even
      assuming that a probationer’s failure to qualify for a government credit card was
      attributable to his preappointment credit history, his termination for failure to
      secure approval for the card constituted a postappointment reason for termination
      because securing the card was a requirement of his position, which he failed to
      satisfy.     In Cunningham v. Department of the Army, 119 M.S.P.R. 147,
      ¶ 8 (2013), the Board found that, even assuming that the probationer’s
      postappointment performance deficiencies were caused by a preexisting medical
      condition,    her   termination   for   deficient   performance     was    done    for
      postappointment reasons.
¶11         In contrast, in the present case, the appellant did not fail to satisfy any
      requirement of his position as a result of his postappointment admissions and
      criminal charges, and his performance was not deficient. Instead, the admissions
      and the criminal charges merely revealed the appellant’s alleged preappointment
      criminal conduct, which was the basis for his termination.
¶12         We find Jones v. Department of Justice, 524 F. App’x 660 (Fed. Cir. 2013),
      to be more analogous in this regard. 3 In Jones, while an individual was serving a
      probationary period for a Cook Supervisor position, the Bureau of Prisons Office
      of Internal Affairs (OIA) issued a report concluding that he had committed
      misconduct in a prior position as a Correctional Officer. Jones, 524 F. App’x
      at 661-62.    Thereafter, the agency terminated his employment based upon the


      3
       Although the court has designated the decision in Jones as nonprecedential, the Board
      may follow a nonprecedential decision where, as here, it finds it persuasive. Dean v.
      Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010).
                                                                                           6

      misconduct at issue in the OIA report. Id. at 662. Although the probationer’s
      preappointment misconduct was not substantiated until the postappointment
      issuance of the OIA report, the court found that the Board correctly concluded
      that he was terminated for preappointment reasons.          Id. at 663-64.   Similarly,
      here, although the appellant’s postappointment alleged admissions and criminal
      charges revealed his alleged preappointment misconduct, he was terminated based
      on the underlying alleged misconduct, which is a preappointment reason.
¶13        Because the appellant was terminated for preappointment reasons, he was
      entitled to the procedural protections set forth in 5 C.F.R. § 315.805.           It is
      undisputed that the agency did not provide the appellant with these procedural
      rights, which include advance notice of the termination, an opportunity to
      respond, and consideration of the response.         See IAF, Tab 4 at 12; 5 C.F.R.
      § 315.805.    Therefore, the relevant inquiry is whether the agency’s failure to
      follow these procedures was harmful error. Hope, 108 M.S.P.R. 6, ¶ 7.
¶14        It is well established, however, that harmful error cannot be presumed; an
      agency error is harmful only where the record shows that it was likely to have
      caused the agency to reach a conclusion different from the one it would have
      reached in the absence or cure of the error. Id., ¶ 8. Further, the burden is on the
      appellant    to   show   that   the   procedural   error   was   harmful.     5 C.F.R.
      § 1201.56(c)(3). Because the administrative judge found that the Board lacked
      jurisdiction over this appeal, the record is not developed on the issue of whether
      the appellant met his burden of establishing that the agency would not have
      terminated him had it provided him with advance notice of the termination, an
      opportunity to respond, and consideration of his response.           On remand, the
      administrative judge shall provide the appellant with notice of what is necessary
      to establish harmful error and afford the parties the opportunity to present
      evidence and argument on this issue.
¶15        In addition, we note that the appellant indicated on his initial appeal form
      that the agency made a negative suitability determination. IAF, Tab 1 at 4. The
                                                                                       7

      record does not contain further mention of such a claim, which has a particular
      meaning in Board law that may not apply here, see 5 C.F.R. part 731, and the
      appellant may have intended to abandon such a claim.             On remand, the
      administrative judge shall provide the appellant with notice of the burdens and
      elements of proof to establish jurisdiction over a claim that he was subjected to a
      negative suitability determination, and either adjudicate the claim or document
      the appellant’s desire to withdraw such a claim, as appropriate. Cf. Wynn v. U.S.
      Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010) (finding that, when an appellant
      raises an affirmative defense in an appeal by checking the appropriate box on an
      appeal form, the administrative judge must address the affirmative defense in any
      close of record order or prehearing conference summary and order).

                                           ORDER
¶16        For the reasons discussed above, we REMAND this appeal to the regional
      office for further adjudication in accordance with this Order.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.
