                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MILTON FINLEY,                                  DOCKET NUMBER
                  Appellant,                         DA-315H-15-0602-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 3, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Kevin Wagner, Waco, Texas, for the appellant.

           Jacob B. Nist, Austin, Texas, 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         Effective April 19, 2015, the appellant received a career-conditional
     appointment to a competitive service position as a Contact Representative with
     the agency. Initial Appeal File (IAF), Tab 5 at 10. The appointment was subject
     to the completion of a 1-year probationary period. Id. The agency terminated the
     appellant, effective August 12, 2015, for leave-related issues. Id. at 19-20, 23.
¶3         The appellant filed a timely appeal alleging that the agency’s termination
     was wrongful because he had no supervisor to ask for advice and he was removed
     without a prior warning. IAF, Tab 1 at 7. In her acknowledgment order, the
     administrative judge informed the appellant that there was a question of whether
     the Board had jurisdiction over his appeal because of his probationary status, and
     she directed him to present evidence and argument on the question of jurisdiction.
     IAF, Tab 3 at 2-5. The appellant failed to respond, and the agency moved to
     dismiss the appeal for lack of jurisdiction. IAF, Tab 5 at 8.
¶4         The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction, without holding the requested hearing. IAF, Tab 6, Initial
     Decision (ID) at 1, 5.     Specifically, the administrative judge found that the
                                                                                      3

     appellant failed to make a nonfrivolous allegation of Board jurisdiction over the
     termination during his probationary period. ID at 5.
¶5        The appellant has filed a petition for review, asking that the Board review
     the initial decision. Petition for Review (PFR) File, Tab 1 at 2. He also states
     that he is unsure if the union submitted all his documents. Id.
¶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). As correctly stated by the
     administrative judge, an employee in the competitive service, such as the
     appellant, may have a statutory right to appeal adverse actions to the Board under
     5 U.S.C. chapter 75 if he qualifies as an employee under 5 U.S.C. § 7511(a)(1).
     ID at 3. Under this provision, an individual is an “employee” if he is “not serving
     a probationary or trial period under an initial appointment,” or “has completed
     1 year of current continuous service under other than a temporary appointment
     limited to 1 year or less.” 5 U.S.C. § 7511(a)(1)(A); McCormick v. Department
     of the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002).
¶7        Probationers who are not employees under 5 U.S.C. § 7511 may appeal a
     termination to the Board if the termination was based on partisan political reasons
     or marital status, or, if the termination was for reasons arising prior to the
     employee’s appointment, the termination was not effected in accordance
     with 5 C.F.R. § 315.805. 5 C.F.R. § 315.806(a)-(c); see Merian v. Department of
     the Navy, 107 M.S.P.R. 221, ¶ 4 (2007).
¶8        In this case, the appellant admitted that, at the time he was terminated, he
     had only 4 months of Federal Government service and was still serving a
     probationary period.   IAF, Tab 1 at 2, 5.    Therefore, the administrative judge
     correctly found that he failed to make a nonfrivolous allegation that he was an
     employee under 5 U.S.C. § 7511(a)(1)(A). Furthermore, the appellant failed to
     allege that he was discriminated against for partisan political reasons or marital
     status, or that his termination was based on preappointment reasons without the
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     procedures set forth in 5 C.F.R. § 315.805.        Accordingly, we agree with the
     administrative judge that the appellant failed to make a nonfrivolous allegation of
     Board jurisdiction over his appeal. ID at 5.
¶9         On review, the appellant states that he is unsure if his union representative
     submitted all of his paperwork. PFR File, Tab 1 at 2. The appellant does not
     specify the nature of the referenced paperwork or its significance, if any, to the
     jurisdictional issues, and he does not explain why he failed to submit the
     paperwork himself. Id. Furthermore, to the extent that the appellant is arguing
     that his representative failed to submit documents relevant to the jurisdictional
     issue, it is well settled that an appellant is responsible for the errors of his chosen
     representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
     Thus, we find that this is not a basis to disturb the initial decision.

                      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:
                                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
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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 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.




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