                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAHOSAME COTTO,                                 DOCKET NUMBER
                 Appellant,                          DC-0752-16-0100-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: August 10, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jahosame Cotto, Stafford, Virginia, pro se.

           Denise Gillis, Esquire, Quantico, Virginia, 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 in the following circumstances: 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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     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).
                                     BACKGROUND
¶2        The agency appointed the appellant to the excepted-service position of
     Information Technology (IT) Specialist effective January 12, 2015.          Initial
     Appeal File (IAF), Tab 1 at 11.         The agency terminated him effective
     September 30, 2015, for failure to meet a condition of his employment.          Id.
     at 28-29. The appellant filed an appeal challenging his termination. Id. at 1-2.
     He claimed that the agency wrongfully terminated him for failure to meet an
     employment condition included in the position description but not included in the
     formal job offer or the Standard Form 50. Id. at 7-9. Because it was not clear
     whether the appellant was an employee with the right to appeal his separation
     under chapter 75 of title 5, the administrative judge ordered the appellant to file
     evidence and argument showing that the appeal was within the Board’s
     jurisdiction. IAF, Tab 1 at 1, Tab 3. The appellant responded to the order. IAF,
     Tab 4.   After considering the appellant’s response, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID).
     Because the appellant failed to make nonfrivolous allegations of fact that would
     establish the Board’s jurisdiction, the administrative judge did not hold his
     requested hearing. IAF, Tab 1 at 1; ID at 1, 5.
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¶3         The appellant filed a petition for review. Petition for Review (PFR) File,
     Tab 1. He disputes the administrative judge’s reasoning and reiterates the merits
     of his claim. Id. The agency has responded to the petition for review. PFR File,
     Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶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). 2 The Board does not have
     jurisdiction over all matters alleged to be unfair or incorrect. Johnson v. U.S.
     Postal Service, 67 M.S.P.R. 573, 577 (1995). The appellant has the burden of
     proving by preponderant evidence that the Board has jurisdiction over his
     appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).
¶5         The determination as to whether an individual in the excepted service
     qualifies as an employee with adverse action appeal rights to the Board depends
     on whether that individual is preference eligible under                5 U.S.C. § 2108.
     See 5 U.S.C. § 2108(3) (defining “preference eligible”).            To qualify as an
     excepted-service    “employee”      with    appeal    rights   under     chapter 75,   a
     preference-eligible excepted-service appointee must show that he has completed
     1 year of current continuous service in the same or similar positions. 5 U.S.C.
     § 7511(a)(1)(B). A preference-eligible excepted-service appointee with less than
     1 year of current continuous service has no statutory right of appeal to the Board.
     Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234, ¶ 9 (2011). Prior
     service can be tacked towards the completion of a probationary period in the
     excepted service if the prior service was:       (1) performed in the same agency;
     (2) performed in the same line of work; and (3) completed with no more than one

     2
       The appellant alleged that the administrative judge erred in citing Maddox and another
     case that differed factually from his situation. PFR File, Tab 1 at 1. We decline to find
     that the administrative judge erred in citing these cases as standing for the proposition
     that the Board’s jurisdiction is limited. ID at 2.
                                                                                        4

     break in service of less than 30 days.      Martinez v. Department of Health and
     Human Services, 118 M.S.P.R. 154, ¶ 6 (2012).
¶6           The appellant is a preference-eligible veteran. IAF, Tab 1 at 11, Tab 4 at 3.
     Therefore, the Board would have jurisdiction over his appeal if he had completed
     1 year of current continuous service in the same or a similar position. 5 U.S.C.
     § 7511(a)(1)(B). However, the appellant was only employed as an IT Specialist
     at the agency for 9 months. IAF, Tab 1 at 1. The administrative judge gave the
     appellant notice that he could file evidence of other employment that might be
     tacked on to his service, but he did not submit any such evidence. IAF, Tab 3
     at 2-3. Accordingly, the appellant does not meet the jurisdictional requirements
     under     5 U.S.C.      § 7511(a)(1)(B).   See    Allen   v.    Department   of   the
     Navy, 102 M.S.P.R. 302, ¶ 9 (2006) (finding 7 months of service insufficient to
     meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)).
¶7           Furthermore, we agree with the administrative judge that the appellant
     is not entitled to a hearing because he did not make a nonfrivolous allegation that
     would give the Board jurisdiction over his appeal. See Bell v. Department of
     Homeland Security, 95 M.S.P.R. 580, ¶ 14 (2004) (finding that an appellant failed
     to   make a nonfrivolous allegation that he           was      an “employee” under
     section 7511(a)(1)(B) and thus was not entitled to a jurisdictional hearing). The
     appellant was informed of the necessary requirements to show jurisdiction. IAF,
     Tab 3. Nevertheless, he failed to make any allegation that would give the Board
     jurisdiction over the appeal.
¶8           Accordingly, we affirm the initial decision, which dismissed the appeal for
     lack of jurisdiction.

                       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:
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                          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 and 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 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.
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FOR THE BOARD:     ______________________________
                   Jennifer Everling
                   Acting Clerk of the Board
Washington, D.C.
