                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TERROL M. PRATHER,                              DOCKET NUMBER
                   Appellant,                        DC-0752-14-0327-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 15, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Deano C. Ware, Redford, Michigan, for the appellant.

           Keith Bracey, Esquire, Headquarters, U.S. Army, Europe, APO/AE, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was appointed to a position overseas as an Installation Food
     Advisor in June 2005 for a term not to exceed March 2007. Initial Appeal File
     (IAF), Tab 5 at 18. His term was extended until September 2008. Id. at 20-21.
     In September 2008, the appellant was appointed to the position of Supervisory
     Food Service Operations Specialist.     Id. at 22.   The appellant’s tour in this
     position was extended in April 2012 and would expire in June 2013. Id. at 37-38.
     However, as the appellant had registered for the Priority Placement Program
     (PPP) in March 2013, the agency extended his term as long as he remained
     enrolled in the program.    Id. at 23-35, 109-11.    In October 2013, the agency
     proposed the appellant’s removal based on the expiration of his tour, ineligibility
     to remain in the PPP, and failure to abide by the terms of his rotation agreement.
     Id. at 116-18. After the appellant had an opportunity to respond to the proposal,
     the agency issued a decision removing the appellant, effective December 20,
     2013. Id. at 137-42.
¶3        In his appeal, the appellant argued substantive issues related to his removal.
     IAF, Tab 1 at 4. He requested a hearing. Id. at 2. On motion to dismiss for lack
     of jurisdiction, the agency argued that although the appellant was a chapter 75
     employee, he was serving under a term appointment, the expiration of which is
     not appealable to the Board. IAF, Tab 5 at 12, 14. The agency also argued that
     the appellant’s enrollment in the PPP did not give him additional rights to appeal
     his removal.   Id.   In response to an order from the administrative judge, the
     appellant argued that his removal was appealable to the Board because, when he
     became a Supervisory Food Service Operations Specialist in September 2008, he
     became a career appointee with a 1-year probationary period, which he completed
     in September 2009. IAF, Tab 8 at 4. The administrative judge dismissed the
     appeal, finding that the appellant had failed to make a nonfrivolous allegation of
     jurisdiction entitling him to a hearing. IAF, Tab 10, Initial Decision (ID). She
     found that the appellant was serving a term appointment and that neither the
                                                                                      3

     expiration of his term nor the failure to place the appellant in a position through
     the PPP was appealable to the Board. ID at 4-6.
¶4        On petition for review, the appellant argues, inter alia, that the
     administrative judge erred in finding that he was serving under a term
     appointment. The appellant further argues that he was a permanent employee and
     that he did not knowingly consent to the loss of his Board appeal rights upon
     enrollment in the PPP. Petition for Review (PFR) File, Tab 1 at 6-8. In response,
     the agency contends, inter alia, that, although the appellant’s Standard Form (SF)
     50 indicates that he was a permanent employee, the factual record as a whole,
     including the appellant’s September 2008 rotation agreement, indicates that he
     was serving a time-limited appointment, the termination of which is not
     appealable to the Board. PFR File, Tab 3 at 7-8.
¶5        An appellant is entitled to a jurisdictional hearing if he raises nonfrivolous
     allegations of Board jurisdiction over his appeal.       Levy v. Department of
     Labor, 118 M.S.P.R. 619, ¶ 5 (2012). In determining whether the appellant has
     made nonfrivolous allegations of jurisdiction entitling him to a hearing, the
     administrative judge may consider the agency’s documentary submissions;
     however, to the extent that the agency’s evidence constitutes mere factual
     contradiction of the appellant’s otherwise adequate prima facie showing of
     jurisdiction, the administrative judge may not weigh evidence and resolve
     conflicting assertions of the parties, and the agency’s evidence may not be
     dispositive. Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 6
     (2013).
¶6        The agency conceded that the appellant was an employee as defined
     under 5 U.S.C. § 7511 at the time of his removal.         PFR File, Tab 3 at 8.
     However, the expiration of a term appointment is not an adverse action
     appealable to the Board. Scott v. Department of the Air Force, 113 M.S.P.R. 434,
     ¶ 9 (2010).    The exact date of an appointment’s expiration need not be
     predetermined in order for the expiration of the appointment to be outside of the
                                                                                              4

     Board’s adverse action jurisdiction.              Endermuhle v. Department of the
     Treasury, 89 M.S.P.R. 495, ¶ 9 (2001). The Board looks to the totality of the
     circumstances to determine the nature of an employee’s appointment; an
     employee’s SF-50, although the customary document used to memorialize a
     personnel action, is not controlling. Scott, 113 M.S.P.R. 434, ¶ 8.
¶7         The   administrative    judge      found,    based   upon   the   totality   of   the
     circumstances, that the appellant received a term appointment, the expiration of
     which was not appealable to the Board. ID at 4-6. In rendering her decision, the
     administrative judge considered that, although the appellant’s SF-50s may have
     indicated otherwise, the appellant’s specific employment agreement showed that
     he was appointed to a 2-year term beginning in September 2008, which was
     subsequently extended until June 2013. ID at 2.
¶8         In dismissing the appeal, the administrative judge relied upon the Board’s
     decision in Scott.     ID at 5.    The appellant in Scott entered into an initial
     agreement providing that he was a new appointee and that his “prescribed tour of
     duty” was 36 months, after which he would be eligible for return travel and
     transportation “for purpose of separation from the service.” Scott, 113 M.S.P.R.
     434, ¶ 6. Another agreement limited any extension to employee and management
     approval. Id. However, the SF-50 documenting the appellant’s appointment in
     that case indicated that he was receiving a career-conditional appointment. Id.,
     ¶ 8. Despite contrary evidence in the SF-50, the Board found that the “totality of
     the circumstances” showed that the appellant had been appointed to a 3-year term
     and separated at the expiration of that term, and it therefore dismissed the appeal
     for lack of jurisdiction. Id., ¶¶ 8-9.
¶9         While there are clear similarities between the present case and Scott, we
     find that Scott is distinguishable. Like in Scott, the appellant in the present case
     entered into an agreement with the agency providing for a time-limited
     appointment subject to extension, IAF, Tab 5 at 36, but the agency issued a SF-50
     indicating that the appellant was receiving a career-conditional appointment, IAF,
                                                                                              5

      Tab 8 at 16. Unlike in Scott, however, there is evidence other than a single SF-50
      to support the appellant’s claim that he received a career-conditional, rather than
      a term, appointment. Specifically, the appellant and an agency Human Resources
      Assistant engaged in an e-mail exchange around the time of his appointment.
      IAF, Tab 8 at 19-24. The appellant was sent an offer “as VEOA 2 eligible to the
      permanent, full-time Supv Food Service Operations, YC-0301-02 position,” and
      was e-mailed a rotation agreement “based on your conversion to Career
      appointment” with an initial tour of 24 months. Id. at 21-22. The appellant was
      asked at that point if he had held a permanent career-conditional or career
      position before and he replied that he had not held such a position before. Id.
      at 19. 3
¶10           We therefore find that the appellant has made nonfrivolous allegations that
      he was not serving in a term position after September 2008 and that his December
      2013 removal was an appealable adverse action. 4 PFR File, Tab 1 at 6-8. This
      finding is based upon the totality of the circumstances, including the September
      2008 e-mail exchange, the SF-50 indicating that the appellant was receiving a
      career appointment, and the appellant’s statements. Consequently, the appellant
      is entitled to a jurisdictional hearing on his claim that his removal is an adverse
      action appealable to the Board under chapter 75.             See Levy, 118 M.S.P.R.
      619, ¶ 5.




      2
          Veterans’ Employment Opportunities Act.
      3
        Also, the administrative judge in Scott had already held a hearing, 113 M.S.P.R. 434,
      ¶ 3, and therefore the Board did not need to determine in that case whether the appellant
      had made nonfrivolous allegations of jurisdiction entitling him to a hearing.
      4
        The appellant’s removal from the PPP is not an independent basis for Board
      jurisdiction. See Scott, 113 M.S.P.R. 434, ¶ 10 (failure to be placed in the PPP is not an
      appealable adverse action).
                                                                                6

                                    ORDER
     Accordingly, we VACATE the initial decision and REMAND the appeal to
the administrative judge for further adjudication, including a jurisdictional
hearing, regarding the nature of the appellant’s appointment and termination.




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