                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TYRONE CRAWFORD,                                DOCKET NUMBER
                 Appellant,                          DC-0752-15-0518-I-1

                  v.

     FEDERAL RETIREMENT THRIFT                       DATE: July 23, 2015
       INVESTMENT BOARD,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Dharmesh Vashee and Sivram D. Prasad, Washington, D.C., 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2        The agency terminated the appellant from the excepted service position of
     Attorney Advisor during his trial period for inadequate performance.                   Initial
     Appeal File (IAF), Tab 7 at 14. The appellant appealed the agency’s action. IAF,
     Tab 1. The administrative judge found that the appellant was not an employee
     with Board appeal rights because he was serving a probationary or trial period in
     the excepted service. IAF, Tab 9, Initial Decision.
¶3        In     his   petition   for review,   the   appellant    asserts   that    he     has   a
     constitutionally-protected property interest in his position and he has a right to
     notice and an opportunity to respond before he can be terminated, rights which
     the agency did not afford him. Petition for Review File, Tab 1.
¶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). Only an “employee,” as defined under
     5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an adverse
     action     such   as   a     removal.      Barrand   v.      Department    of        Veterans
     Affairs, 112 M.S.P.R. 210, ¶ 13 (2009); see 5 U.S.C. §§ 7511(a)(1), 7512(1),
     7513(d).     A nonpreference-eligible individual in the excepted service is an
                                                                                            3

     “employee” within the meaning of 5 U.S.C. § 7511 only if he: (1) is not serving a
     probationary or trial period under an initial appointment pending conversion to
     the competitive service; or (2) has completed 2 years of current continuous
     service in the same or similar positions in an Executive agency under other than a
     temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i)-
     (ii). 2    Here is it undisputed that the appellant was not preference-eligible.
     Further, the record reflects that he was serving a trial period, and he had served in
     his position for less than 1 year. Thus, we find that he was not an employee and
     the Board does not have jurisdiction over his appeal. Id.
¶5             The appellant’s assertion that he was improperly denied a constitutional
     right to due process because he had a property interest in his position is
     unavailing. The appellant’s arguments that his termination did not comply with
     constitutional requirements are not within the Board’s jurisdiction because he was
     not an “employee” with chapter 75 appeal rights at the time of his termination.
     See McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594
     ¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386
     (2013). Accordingly, we find that the administrative judge properly dismissed
     this 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 United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:


     2
       As an individual appointed in the excepted service, the appellant has no regulatory
     right to appeal under 5 C.F.R. § 315.806, which applies only to individuals in the
     competitive service. See Barrand, 112 M.S.P.R. 210, ¶ 13. The agency’s erroneous
     notice to the appellant that he had rights under 5 C.F.R. § 315.806 to appeal to the
     Board if he believed that the agency’s action was taken based on his marital status or
     for partisan political reasons, could not expand the Board’s jurisdiction. See IAF, Tab 7
     at 14.
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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 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
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
United States 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
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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.
