                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALEXIS GONZALEZ,                                DOCKET NUMBER
                  Appellant,                         NY-315H-14-0239-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: November 18, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Sidney Baumgarten, Esquire, New York, New York, for the appellant.

           Tara Roberts, Washington, D.C., 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 for lack of jurisdiction his appeal of his termination during his
     probationary period.      For the reasons discussed below, we GRANT the



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     appellant’s petition for review, VACATE the initial decision, and REMAND the
     case to the field office for further adjudication in accordance with this Order.
¶2         Effective March 24, 2013, the agency appointed the appellant to a GL-05
     Correctional Officer position in the competitive service subject to the successful
     completion of a 1-year probationary period.       Initial Appeal File (IAF), Tab 5
     at 12-14. By notice dated March 20, 2014, the agency informed the appellant that
     he was terminated during his probationary period, “effective midnight on
     March 21, 2014,” based on alleged misconduct. Id. at 34-36, 42.
¶3         On appeal, the appellant asserted that he completed his probationary period
     when he finished his tour of duty on March 20, 2014.            IAF, Tab 10.       The
     administrative judge, however, found that the appellant was still a probationer
     when his termination became effective. Initial Decision (ID) at 3. Because the
     appellant was terminated for post-appointment reasons and did not make a
     nonfrivolous allegation that his termination was based on marital status
     discrimination or partisan political reasons, the administrative judge dismissed
     the appeal for lack of jurisdiction. ID at 5-6. The appellant petitions for review
     of the initial decision and the agency responds in opposition to the appellant’s
     petition. Petition for Review (PFR) File, Tabs 1, 3.
¶4         A probationary period ends at the completion of the last day of the
     employee’s tour of duty before his anniversary date. Herring v. Department of
     Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). We cannot
     determine from the record when the appellant’s probationary period ended. His
     anniversary date was March 24, 2014, and so he would have completed probation
     when he finished his last tour of duty on or before March 23, 2014. In order to
     take advantage of the procedures applicable in probationer cases, the agency had
     to have made the appellant’s termination effective before the moment he finished
     his last tour of duty on or before March 23, 2014. See Ward v. Department of
     Agriculture, 60 M.S.P.R. 306, 308 (1994).        The termination was effective at
     midnight on March 21, 2014. Therefore, if the appellant was scheduled to work
                                                                                       3

     on March 21, 22, or 23, 2014, he was terminated before the end of his
     probationary period. While both the appellant’s and the agency’s representatives
     have expressed their views about the appellant’s work schedule on those 3 days,
     they have not done so in the form of evidence but in the form of unsworn
     statements made in pleadings.       See Hendricks v. Department of the Navy,
     69 M.S.P.R. 163, 168 (1995) (the statements of a party’s representative in a
     pleading do not constitute evidence).
¶5        There is no evidence in the record concerning whether the appellant was
     scheduled to work on any or all of those 3 days.        Moreover, the agency has
     presented some evidence on review to show that the appellant was working in a
     relief post, and did not necessarily have a regular schedule with the same days off
     every week, PFR File, Tab 3 at 6-7, and it is not at all clear whether the appellant
     had a schedule that was established in advance.
¶6        The appellant has the burden of proving the Board’s jurisdiction over his
     appeal. See, e.g., Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 4 (2008).
     Therefore, it is his burden to prove that he was not scheduled to work on
     March 21, 22, or 23, 2014. In light of the fact that the appellant first argued that
     he had completed his probationary period in a pleading filed 2 days before the
     administrative judge issued the initial decision, which deprived the agency of an
     opportunity to respond below, and because there is an issue of material fact that
     bears substantially on the question of jurisdiction that neither party has fully
     addressed, we find it appropriate under the circumstances of this case to remand
     the appeal for further development of the record including a jurisdictional
     hearing.   Cf. Boechler v. Department of the Interior, 109 M.S.P.R. 619, ¶ 16
     (2008) (the Board has an interest in ensuring that jurisdictional determinations are
     correct), aff’d, 328 F. App’x 660 (Fed. Cir. 2009).
                                                                           4

                                    ORDER
     For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.




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