                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIE C. JULIAN,                               DOCKET NUMBER
                    Appellant,                       CH-315H-16-0292-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: December 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeff T. Schrameck, Esquire, Plymouth, Michigan, for the appellant.

           Andrew Chiang, Springfield, Virginia, 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 probationary termination appeal for lack of jurisdiction. Generally,
     we grant petitions such as this one only in the following circumstances:           the
     initial decision contains erroneous findings of material fact; the initial decision is
     based on an erroneous interpretation of statute or regulation or the 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contr ast, 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

     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 dilig ence, 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, whic h is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).

                                     BACKGROUND
¶2        Effective February 19, 2016, the agency terminated the appellant from his
     Telecommunications Specialist position during his probationary period. Initial
     Appeal File (IAF), Tab 1 at 14-15.     He filed a Board appeal alleging that the
     agency failed to afford him the procedural protections under 5 C.F.R. § 315.805
     and, alternatively, that he was an employee entitled to appeal his removal to the
     Board under 5 U.S.C. § 7511(a)(1)(B). Id. at 6. The administrative judge issued
     orders setting forth the law applicable to the question of the Board’s jurisdiction
     and ordered the appellant to file evidence and argument showing that his appeal
     was within the Board’s jurisdiction. IAF, Tabs 2-3. In response, the appellant
     argued that he was an employee under 5 U.S.C. § 7511(a)(1)(C)(ii) based on his
     prior service with the Internal Revenue Service (IRS). IAF, Tab 10 at 8-12.
¶3        The administrative judge issued a show cause order informing the appellant
     that, because his position was in the competitive service, the relevant statutory
     section was 5 U.S.C. § 7511(a)(1)(A), and that it appeared that he did not meet
     the requirements of this section because his prior service with the IRS was
     temporary. IAF, Tab 11. In response, the appellant asserted that his IRS service
                                                                                        3

     was not temporary because he had received a promotion and had served a
     probationary period there. IAF, Tab 13 at 6-8. The appellant contended that he
     had received a career‑conditional appointment with the IRS based on an offer
     letter he received from the IRS, which indicated that his position was temporary
     not to exceed (NTE) 1 year, but also referenced him completing a 1-year
     probationary period and being placed in a conditional tenure until he completed
     3 years of current continuous service. Id. at 8. The agency moved to dismiss the
     appeal for lack of jurisdiction asserting that the appellant failed to nonfrivolously
     allege that he was an employee under 5 U.S.C. § 7511(a)(1)(A), given that his
     prior IRS service was temporary and did not count toward completing his 1-year
     probationary period because it was rendered in a different agency. IAF, Tab 12
     at 8-11.
¶4         Without holding the requested hearing, the administrative judge issued an
     initial decision, dismissing the appeal for lack of jurisdiction.      IAF, Tab 16,
     Initial Decision (ID). The administrative judge found that the appellant failed to
     nonfrivolously allege that he was an employee under section 7511(a)(1)(A)(i)
     given that he did not allege that he was hired under an authority that precluded
     the agency from imposing a probationary period and his prior IRS service
     could not be credited toward completing his probationary period because it was
     rendered in a different agency. ID at 4. The administrative judge further found
     that the appellant failed to nonfrivolously allege that he was an employee under
     section 7511(a)(1)(A)(ii) because his offer letter and Standard Form 50 (SF-50)
     reference his prior IRS appointment as a temporary appointment and he did not
     allege that the IRS treated his service as anything other than temporary. ID at 5.
     Additionally, the administrative judge found that the Board lacks jurisdiction over
     the appellant’s probationary termination appeal because the record showed that
     the agency afforded him the procedural protections required b y 5 C.F.R.
                                                                                            4

     § 315.805. 2   ID at 6.   Finally, the administrative judge found that, absent an
     otherwise appealable action, the Board lacks jurisdiction over the appellant’s
     discrimination claims. ID at 7.
¶5         The appellant has filed a petition for review in which he asserts that the
     administrative judge erred in determining that his prior appointment to the IRS
     Computer Operator position was a temporary appointment. Petition for Review
     (PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File,
     Tab 3. The appellant has filed a reply. PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         An individual’s right to appeal an adverse action to the Board, such as the
     appellant’s termination, depends on whether he is an “employee” as defined by
     5 U.S.C. § 7511(a)(1).    Bell v. Department of Homeland Security, 95 M.S.P.R.
     580, ¶ 15 (2004). The definition of “employee” includes “an individual in the
     competitive service—(i) who is not serving a probationary or trial period under an
     initial appointment; or (ii) who 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).      On review, the appellant reiterates his arguments
     below that his offer letter from the IRS establishes, or at least raises, a
     nonfrivolous allegation that his prior IRS service was not temporary. PFR File,
     Tab 1 at 10. However, as set forth below, we agree with the administrative judge
     that the appellant’s appointments to the IRS were temporary.
¶7         Effective December 30, 2013, the appellant was appointed to a GS-05
     Computer Operator position with the IRS NTE December 27, 2014. IAF, Tab 12

     2
       Despite the appellant’s contentions that the agency failed to provide him with the
     materials it relied upon in proposing his termination and denied him the opportunity to
     present an oral reply, PFR File, Tab 1 at 7, we agree with the administrative judge that
     the agency afforded him all of the required procedural protections, to include advance
     written notice of the reasons for his proposed termination, an opportunity to submit a
     written response that was considered by the deciding official, and written noti ce of the
     termination decision.
                                                                                               5

     at 23-24. The SF-50 documenting his appointment states that the reason for his
     temporary appointment was due to high volume workload and references his
     appointment as being on a full-time seasonal basis, subject to release to nonpay
     status and recall to duty to meet workload requirements.                   Id.   Effective
     December 28, 2014, the agency extended the appellant’s temporary appoi ntment
     NTE December 26, 2015.          Id. at 25.   Effective January 11, 2015, the agency
     converted the appellant’s appointment to a GS-06 Computer Operator position,
     still NTE December 26, 2015. IAF, Tab 13 at 17. The SF-50 documenting this
     personnel action states that the appellant remained on an NTE appointment. Id.
     Effective March 8, 2015, the appellant was placed in a nonpay status due to the
     lack of available work.        IAF, Tab 12 at 26.        Effective April 18, 2015, the
     appellant resigned without a break in service to begin working as a
     Telecommunications Specialist with the Department of Justice. Id. at 27.
¶8         Based on the totality of the circumstances, we agree with the administrative
     judge that the appellant failed to raise a nonfrivolous allegation that his prior IRS
     service was not temporary.         The vacancy announcement for the appellant’s
     position states that he was hired to a temporary position NTE 1 year. 3 PFR File,
     Tab 3 at 23-27. The appellant’s offer letter also specifies that his appointment
     was temporary NTE 1 year. IAF, Tab 13 at 18. Similarly, the appellant’s SF-50s
     indicate that he was hired to a temporary NTE position, which was then extended
     for close to an additional year. IAF, Tab 12 at 23-25; see 5 C.F.R. § 316.401(c)

     3
       We have considered the vacancy announcement submitted by the agency on review as
     new and material evidence because the agency was not afforded an opportunity to
     submit it below. See 5 C.F.R. 1201.115(d). The agency contends that it was not aware
     of the IRS offer letter or the need to address its contents until the appellant submitted it
     below on April 29, 2016, after the deadline for the agency’s jurisdictional response had
     passed. PFR File, Tab 3 at 19. The agency further contends that it did not receive the
     vacancy announcement from the IRS until after April 29, 2016. Id. The record reflects
     that the agency subsequently moved for leave to file a reply to address the appellant’s
     argument that the offer letter established that his IRS service was not temporary, IAF,
     Tab 14, but the administrative judge issued an initial decision a few days later denying
     the agency’s motion, ID at 1 n.1.
                                                                                       6

     (stating that an agency may make a temporary appointment for a specif ied period
     not to exceed 1 year, which can be extended for an additional year). His SF-50s
     further indicate that he had no tenure and was ineligible for Federal Employees’
     Group Life Insurance (FEGLI) coverage.        IAF, Tab 12 at 23-27; see 5 C.F.R.
     § 870.302(b)(1) (generally excluding employees serving under an appointment
     limited to 1 year or less from FEGLI coverage).
¶9        We acknowledge that the appellant’s IRS offer letter inexplicably also
     states that his temporary NTE 1-year appointment was subject to a 1-year
     probationary period and references his having conditional tenure. IAF, Tab 13
     at 18-23. We also have considered the vacancy announcement submitted by the
     appellant on review, which differs from the vacancy announcement submitted by
     the agency and contains language reflecting that, although the position was a
     temporary appointment, it also was subject to a 1-year probationary period. 4 PFR
     File, Tab 4 at 12-16.   However, we find these documents fail to constitute a
     nonfrivolous allegation that the appellant was not serving in a temporary
     appointment because all of his employment documents clearly reference his
     position as being temporary.       See Scott v. Department of the Air Force,
     113 M.S.P.R. 434, ¶ 8 (2010) (stating that the Board looks at the totality of the
     circumstances in determining the nature of the appointment).          We also find
     unavailing the appellant’s argument that, because he was promoted from a GS-05
     to GS-06 and an agency cannot promote an individual serving in a temporary
     appointment except for an overseas appointment, he made a nonfrivolous
     allegation that he was an employee with appeal rights. PFR File, Tab 1 at 10.
     Regardless of the propriety of the agency’s actions, the totality of the
     circumstances    indicate   that   the    appellant    served   two    consecutive
     temporary appointments.

     4
       We have considered this document, submitted by the appellant for the first time on
     review, in light of the circumstances below in which the parties were denied an
     opportunity to submit additional briefing on this issue.
                                                                                        7

¶10        Finally, we find that the appellant’s reliance on Mitchell v. Merit Systems
      Protection Board, 741 F.3d 81 (Fed. Cir. 2014), and Roden v. Tennessee Valley
      Authority, 25 M.S.P.R. 363 (1984), to be misplaced. PFR File, Tab 1 at 13-21.
      In Mitchell, the U.S. Court of Appeals for the Federal Circuit determined that an
      appellant’s appointment NTE 18 months was not temporary because, among other
      things, it was not limited to a period of 1 year or less and nothing indicated that
      the agency ever contemplated it to be a short-term position. Mitchell, 741 F.3d
      at 84-86. Similarly, in Roden, the Board held that an appellant’s service under a
      series of five temporary appointments over a period of nearly 4 years with only
      short breaks in service constituted continuous nontemporary service within the
      meaning of 5 U.S.C. § 7511(a)(1)(B), when there was no evidence that the
      appellant was employed only for a limited period of time due to a changing or
      unpredictable workload or a project expected to last for only a limited period of
      time. Roden, 25 M.S.P.R. at 367-68.
¶11        Here, in contrast, the appellant served two consecutive appointments, each
      limited to less than 1 year. IAF, Tab 12 at 23-25. Further, his service was on a
      seasonal basis to fill short-term needs as reflected in his SF-50s, which state that
      the reason for his temporary appointment was due to high volume workload and
      show that he was placed in a nonpay status on March 8, 2015, due to the lack of
      available work. Id. at 23, 26.
¶12        Accordingly, because the appellant failed to nonfrivolously allege that he is
      an employee within the meaning of 5 U.S.C. § 7511(a)(1)(A), we find that the
      administrative judge properly dismissed the 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
      U.S. Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                    8

                          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 and 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
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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.
