                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHARISSE L. NEWSON,                             DOCKET NUMBER
                   Appellant,                        DA-0752-13-2020-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: August 6, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Charisse L. Newson, Dallas, Texas, pro se.

           Colleen Nabhan, Dallas, Texas, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal of her termination 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.         We AFFIRM the initial decision with two
     modifications to the jurisdictional analysis, as set forth below. First, we modify
     the analysis pertaining to 5 U.S.C. § 7511(a)(1)(C)(ii), still finding that the
     appellant does not meet the definition of an employee under this subsection.
     Second, we modify the jurisdictional analysis to reflect that 5 C.F.R. § 315.806(b)
     does not apply to the appellant. Except as expressly modified by this Final Order,
     we   AFFIRM      the   initial   decision,   which   is   now   the   Board’s   final
     decision. 5 C.F.R. § 1201.113(b).

                                       BACKGROUND
¶2        Effective August 12, 2012, the agency appointed the appellant to the
     excepted service position of GS-09 Auditor. Initial Appeal File (IAF), Tab 1 at 7.
     On August 5, 2013, the agency notified the appellant that, effective that date, she
     was being terminated from her position for failure to perform the duties of her
     position in a satisfactory manner. Id. at 10-12; IAF, Tab 7 at 4.
¶3        The appellant filed an appeal indicating that she was appealing a
     termination during a probationary or initial service period and that she was not
     entitled to veterans’ preference. IAF, Tab 1 at 1, 3. The administrative judge
     issued an order to show cause, providing the appellant with her burden of proof
                                                                                            3

     on jurisdiction and ordering her to file evidence and argument to show why the
     appeal should not be dismissed for lack of Board jurisdiction. IAF, Tab 5. After
     providing the parties with the opportunity to respond to the show cause order and
     without holding a hearing, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at
     1, 5.
¶4           The appellant filed a petition for review of the initial decision. 2 Petition for
     Review (PFR) File, Tab 1. On review, the appellant raises allegations of race and
     disability discrimination and argues the merits of her termination. 3 Id. at 5-7.
                        DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly dismissed the appeal for lack of jurisdiction.

¶5           An appellant bears the burden of establishing Board jurisdiction by a
     preponderance       of   the   evidence.    Barrand     v.   Department    of   Veterans
     Affairs, 112 M.S.P.R. 210, ¶ 8 (2009); 5 C.F.R. § 1201.56(a)(2). As noted by the
     administrative judge, only an “employee,” as defined under 5 U.S.C. chapter 75,
     subchapter II, can appeal to the Board from an adverse action.             ID at 3; see
     Barrand, 112 M.S.P.R. 210, ¶ 8; see also 5 U.S.C. §§ 7511(a)(1), 7512(1).
¶6           As a nonpreference eligible in the excepted service, the appellant had to
     satisfy the definition of employee under 5 U.S.C. § 7511(a)(1)(C), which provides
     that “employee” means:
             an individual in the excepted service (other than a preference eligible)--
                    (i)       who is not serving a probationary or trial period under an
                    initial appointment pending conversion to the competitive service; or
                    (ii)     who has completed 2 years of current continuous service in


     2
       Because we are dismissing the appeal for lack of jurisdiction, we do not address the
     timeliness of the appellant’s petition for review. See Metzenbaum v. General Services
     Administration, 96 M.S.P.R. 104, ¶ 1 n.1 (2004) (declining to address the timeliness of
     the appellant’s petition for review where the Board dismissed the appeal for lack of
     jurisdiction).
     3
         The agency has not filed a response.
                                                                                          4

                  the same or similar positions in an Executive agency under other
                  than a temporary appointment limited to 2 years or less.

     An appellant only needs to satisfy the requirements under (C)(i) or (C)(ii) in
     order to be an employee with adverse action appeal rights, not both. Yeressian v.
     Department of the Army, 112 M.S.P.R. 21, ¶ 8 (2009).
¶7         The appellant does not meet the requirements under (C)(i) because she was
     not serving in an initial appointment pending conversion to the competitive
     service at the time of her termination. IAF, Tab 1 at 7. The appellant contends
     that she met the requirements under (C)(ii) because she had 1 year and 10 months
     of prior federal service with the Federal Deposit Insurance Corporation (FDIC) as
     a Resolutions and Receiverships Technician. IAF, Tab 3 at 7, 11. Because the
     appellant did not complete 2 years of service in the Auditor position, she may
     establish jurisdiction under subsection (C)(ii) only if her FDIC service, from
     which she moved to the Auditor position without a break in service, could be
     tacked on to satisfy the 2-year minimum service requirement under the
     subsection. IAF, Tab 1 at 7, Tab 8 at 13; see Beets v. Department of Homeland
     Security, 98 M.S.P.R. 451, ¶ 7 (2005).
¶8         The administrative judge found that the appellant’s prior federal service
     could not be tacked on because her FDIC appointment was limited to 2 years or
     less, and therefore could not count towards the 2-year current continuous service
     requirement. ID at 4. We find it unnecessary to resolve the issue of whether the
     appellant’s prior federal service constituted a temporary appointment under
     (C)(ii) because the undisputed evidence of record shows that the two positions are
     not “the same or similar positions” and thus cannot satisfy the minimum 2 years
     of “current continuous service” under subsection (C)(ii). 4

     4
       As noted by the administrative judge, the appellant’s prior appointment with the FDIC
     was a term appointment limited to less than 2 years. See IAF, Tab 3 at 7. However, it
     is unclear whether the appellant’s FDIC appointment was a temporary appointment
     under (C)(ii). In Mitchell v. Merit Systems Protection Board, 741 F.3d 81, 84-85 (Fed.
     Cir. 2014), our reviewing court explained that the Office of Personnel Management
                                                                                            5

¶9          OPM’s implementing regulations define “similar positions” as “positions in
      which the duties performed are similar in nature and character and require
      substantially the same or similar qualifications, so that the incumbent could be
      interchanged between the positions without significant training or undue
      interruption to the work.” 5 C.F.R. § 752.402; see Beets, 98 M.S.P.R. 451, ¶ 10.
      In addition, positions may be deemed “similar” within the meaning of section
      7511(a)(1) when they are in the “same line of work,” which has been interpreted
      as involving related or comparable work that requires the same or similar
      knowledge, skills, and abilities. See Mathis v. U.S. Postal Service, 865 F.2d 232,
      234 (Fed. Cir. 1988). The Board has defined “same line of work” to mean work
      that is so similar that the positions require the same qualifications, and the nature
      of the work would place them in the same competitive level for reduction-in-force
      purposes.    Beets, 98 M.S.P.R. 451, ¶ 10.           Positions belong in the same
      competitive level if they are in the same grade and classification series and are
      similar enough in duties, qualification requirements, pay schedules, and working
      conditions so that the incumbent of one could successfully perform the critical
      elements of the other position upon entry into it, without undue interruption. Id.
¶10         Here, the Auditor (GS-09, Occupational Code 0511) and Resolutions and
      Receiverships Technician (CG-07, Occupational Code 0303) positions are in
      different grades and classification series, and hence, different competitive levels.
      IAF, Tab 1 at 7, Tab 3 at 7-8. Although the fact that the positions would be


      (OPM) has long distinguished between “temporary” appointments from other types of
      appointments such as “term” appointments. Furthermore, the court noted that “the
      predominant and longstanding use of the word ‘temporary’ in the context of federal
      appointments is to refer to appointments of one year or less.” Id. at 84. To the extent
      that the administrative judge erred in finding that the appellant’s FDIC appointment
      could not count towards the 2-year current continuous requirement because it was
      limited to 2 years or less, any such error does not provide a basis for reversal because
      the administrative judge ultimately was correct in finding that the appellant’s prior
      federal service could not be tacked. See Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
      substantive rights provides no basis for reversal of an initial decision).
                                                                                         6

      placed in different competitive levels is not dispositive of whether the positions
      are similar, see Beets, 98 M.S.P.R. 451, ¶¶ 10-11, it still tends to show that these
      positions are not “similar” under section 7511(a)(1), id., ¶ 11. In addition, the
      evidence of record shows that the two positions involve significantly different
      duties, knowledge, and skills.     A 0511 Auditor classification series position
      involves the following duties: examining and appraising financial records,
      financial and management reports, management controls, and policies and
      practices affecting or reflecting the financial condition and operating results of an
      activity; analyzing work related to developing and executing audit policies and
      programs; conducting performance audits; or conducting activities related to the
      detection of fraud, waste, and abuse. IAF, Tab 8 at 15. A 0303 Miscellaneous
      Clerk and Assistant classification series position, on the other hand, involves
      clerical, assistant, or technician duties. Id. at 16. In light of these significant
      differences, we find that the Auditor and Resolutions and Receiverships
      Technician positions are not sufficiently “similar” to permit tacking under section
      7511(a)(1)(C)(ii).   See Amend v. Department of Justice, 102 M.S.P.R. 614,
      ¶¶ 9-12 (2006) (finding that the appellant failed to establish that two positions
      were similar under section 7511(a)(1) where the positions did not involve related
      or comparable work and did not require similar knowledge and skills) aff’d, 221
      F. App’x 983 (Fed. Cir. 2007).
¶11         The appellant also asserted below that her termination was the result of
      discrimination based on partisan political affiliation and that, accordingly, the
      Board has jurisdiction over her appeal pursuant to 5 C.F.R. § 315.806.          IAF,
      Tab 3 at 11. The administrative judge found that, because the appellant had made
      no assertion regarding any political party or candidate, she failed to show that her
      termination was the result of discrimination based on partisan political reasons.
      ID at 4-5. However, the Board has found that an individual appointed in the
      excepted service has no regulatory right to appeal under 5 C.F.R. § 315.806
      because it applies only to individuals in the competitive service. Cf. Ramirez-
                                                                                              7

      Evans v. Department of Veterans Affairs, 113 M.S.P.R. 297, ¶ 10 (2010) (holding
      that 5 C.F.R. § 315.806 applies only to individuals in the competitive service);
      Barrand, 112 M.S.P.R. 210, ¶ 13 (same). Accordingly, 5 C.F.R. § 315.806(b)
      does not apply to the appellant, and she therefore cannot establish jurisdiction by
      proving that her termination was based on partisan political reasons or marital
      status. 5 See Ramirez-Evans, 113 M.S.P.R. 297, ¶ 10.
¶12          Based on the foregoing, we agree with the administrative judge’s finding
      that the appellant failed to make a nonfrivolous allegation of jurisdiction over her
      appeal.     Because the appellant failed to make a nonfrivolous allegation of
      jurisdiction, the administrative judge properly denied her a hearing.                 See
      Barrand, 112 M.S.P.R. 210, ¶ 8 (an appellant is entitled to a jurisdictional
      hearing only if she makes a nonfrivolous allegation of Board jurisdiction, i.e. an
      allegation of fact which, if proven, could establish a prima facie case that the
      Board has jurisdiction over the matter at issue).            In addition, because the
      appellant does not meet the meet the definition of “employee” under 5 U.S.C. §
      7511, the Board lacks jurisdiction to consider her allegations of discrimination as
      well as the merits underlying her appeal. See Wren v. Department of the Army, 2
      M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
      The documents the appellant submits on review do not provide a basis for review.

¶13          The appellant has submitted several documents on review as alleged new
      evidence. PFR File, Tab 1 at 9-16. Because these documents do not contain any
      evidence that would warrant an outcome different from that of the initial decision,
      they   do    not   provide   a   basis   for   review.      See   Russo    v.   Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a petition



      5
        Because the administrative judge ultimately found that the appellant failed to raise a
      nonfrivolous allegation of partisan political discrimination, we find that her application
      of 5 C.F.R. § 315.806(b) to the appellant does not alter the outcome of the appeal and
      does not prejudice the rights of either party. ID at 4-5; see Panter, 22 M.S.P.R. at 282.
                                                                                  8

for review based on new evidence absent a showing that it is of sufficient weight
to warrant an outcome different from that of 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 United
States 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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
                                                                           9

Merit Systems Protection Board appellants before the court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
