Cunningham v. MSPB ( 2023 )

Case: 22-2088 Document: 24 Page: 1 Filed: 01/13/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM TYRONE CUNNINGHAM,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-2088
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-17-0167-I-1.
______________________
Decided: January 13, 2023
______________________
WILLIAM TYRONE CUNNINGHAM, Washington, DC, pro
se.
ELIZABETH W. FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, TARANTO, and STOLL, Circuit Judges.
Case: 22-2088 Document: 24 Page: 2 Filed: 01/13/2023
2 CUNNINGHAM v. MSPB
PER CURIAM.
William Cunningham, after applying for a particular
position at the Department of Labor’s Bureau of Labor Sta-
tistics, received a letter from the Bureau dated November
19, 2015, “confirm[ing] [his] appointment” to the position
but noting that his appointment was “contingent upon . . .
receipt of all documents required for appointment.” Appx.
21. A Standard Form 50 (SF 50) notice of personnel action,
executed on December 13, 2015, stated that the appoint-
ment was “subject to [the] completion of [a] one year initial
probationary period beginning” that day. SAppx. 34 (box
45). Within that probationary period, the Bureau termi-
nated Mr. Cunningham’s employment. Mr. Cunningham
appealed his termination to the Merit Systems Protection
Board, which dismissed the appeal for lack of jurisdiction,
and then petitioned this court for review. We affirm.
I
Mr. Cunningham, a veteran who was employed at the
U.S. Postal Service from 1993 to 2000, SAppx. 4, 27, 34,
applied to be an information technology specialist in the
Bureau, Appx. 37. On November 19, 2015, the acting chief
of the Bureau’s Branch of Workforce Staffing and Recruit-
ment wrote Mr. Cunningham a letter “confirm[ing] [his]
appointment” as an information technology specialist.
Appx. 21. The letter stated that the appointment was “con-
tingent upon . . . receipt of all documents required for ap-
pointment.” Appx. 21.
An SF 50 for the appointment was executed on Decem-
ber 13, 2015. SAppx. 34. 1 The SF 50 stated that the ap-
pointment was “subject to [the] completion of [a] one year
1 A second SF 50 was executed on December 18,
2015, Reply Br. Appx. 7, to make the pay increases re-
quired by the generally applicable Executive Order 13715,
issued the same day. 80 Fed. Reg. 80,195 (Dec. 18, 2015).
Case: 22-2088 Document: 24 Page: 3 Filed: 01/13/2023
CUNNINGHAM v. MSPB 3
initial probationary period beginning” that day. SAppx. 34
(box 45). There has been no showing that Mr. Cunningham
started working in the job by carrying out the duties of the
position before December 13, 2015.
On December 1, 2016, the Bureau terminated Mr. Cun-
ningham’s employment effective December 9, 2016, within
the one-year probationary period. SAppx. 35. The notice
of termination stated that Mr. Cunningham’s supervisor
“determined that [Mr. Cunningham] failed to demonstrate
[his] fitness for continued employment” as a result of “[his]
conduct during [his] probationary period.” Id. According
to Mr. Cunningham, he was told that he was terminated
“because of conduct issues relating to the reporting of [his]
time.” SAppx. 32. Mr. Cunningham appealed his termina-
tion to the Board on December 6, 2016, SAppx. 23, within
the 30 days allowed by 5 C.F.R. § 1201.22(b)(1). On the
appeal form, Mr. Cunningham checked a box answering
“yes” to a question asking whether he was “serving a pro-
bationary . . . period at the time of” his termination.
SAppx. 27 (box 11).
The administrative judge assigned to the matter dis-
missed Mr. Cunningham’s appeal for lack of jurisdiction in
an initial decision on March 31, 2017, concluding that Mr.
Cunningham was not an “employee” with appeal rights to
the Board under 5 U.S.C. §§ 7511(a)(1)(A) and 7513(d) and
that he failed to make allegations that would bring him
within the narrow scope of Board jurisdiction (under 5
C.F.R. § 315.806) to hear a probationary employee’s appeal
of a termination. Cunningham v. Department of Labor, No.
DC-315H-17-0167-I-1, 2017 WL 1209598 (M.S.P.B. Mar.
31, 2017); Appx. 1–5. Mr. Cunningham timely petitioned
the Board to review the initial decision on April 25, 2017,
SAppx. 26, and the Board (after acquiring a quorum needed
to act) denied the petition on July 27, 2022. Cunningham
v. Department of Labor, No. DC-315H-17-0167-I-1, 2022
WL 2976331 ¶ 1 (M.S.P.B. July 27, 2022); Appx. 11–12.
Case: 22-2088 Document: 24 Page: 4 Filed: 01/13/2023
4 CUNNINGHAM v. MSPB
The denial made the initial decision the Board’s final deci-
sion on the same day. 5 C.F.R. § 1201.113(b).
Mr. Cunningham timely petitioned this court for re-
view on August 1, 2022, Dkt. 1, within the 60 days allowed
by 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction under 5
U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
II
We decide de novo whether the Board properly dis-
missed Mr. Cunningham’s appeal for lack of jurisdiction.
See Mouton-Miller v. MSPB, 985 F.3d 864, 868–69 (Fed.
Cir. 2021). “The Board does not have plenary appellate ju-
risdiction over personnel actions.” Id. at 869 Rather, for
the Board to have jurisdiction, the underlying personnel
action must be “appealable to the Board under [a] law, rule,
or regulation.” 5 U.S.C. § 7701(a). Mr. Cunningham, as
the plaintiff, bears the burden of establishing the Board’s
jurisdiction by a preponderance of the evidence. Mouton-
Miller, 985 F.3d at 869.
Of relevance here, 5 U.S.C. § 7513(d) permits an “em-
ployee” against whom a qualifying personnel action—in-
cluding termination, see id. § 7512(1)—is taken to appeal
that action to the Board. In this context, an “‘employee’
means an individual in the competitive service who is not
serving a probationary or trial period under an initial ap-
pointment” or “who has completed 1 year of current contin-
uous service under other than a temporary appointment
limited to 1 year or less.” Id. § 7511(a)(1)(A) (indentation
and punctuation altered). Probationary employees have
only the more limited appeal rights conferred by 5 C.F.R.
§ 315.806. See Mastriano v. Federal Aviation Administra-
tion, 714 F.2d 1152, 1155 (Fed. Cir. 1983) (“The only cog-
nizable right of appeal by a probationary employee to the
[Board] is . . . 5 C.F.R. § 315.806.”). That section permits a
probationary employee to appeal a termination to the
Board if the probationary employee alleges that the termi-
nation “was based on partisan political reasons or marital
Case: 22-2088 Document: 24 Page: 5 Filed: 01/13/2023
CUNNINGHAM v. MSPB 5
status” or “was not effected in accordance with the proce-
dural requirements of [5 C.F.R. § 315.805].” 5 C.F.R.
§ 315.806.
We conclude that, because Mr. Cunningham was a pro-
bationary employee at the time of his termination—and not
an employee under 5 U.S.C. § 7511(a)(1)(A)—he could not
appeal his termination to the Board under 5 U.S.C.
§ 7513(d). We also conclude that, because Mr. Cunning-
ham did not allege discrimination based on partisan affili-
ation or marital status, or that his termination was not
effected in accordance with the procedural requirements of
5 C.F.R. § 315.805, he could not appeal his termination to
the Board under 5 C.F.R. § 315.806. We therefore hold that
the Board lacked jurisdiction and correctly dismissed Mr.
Cunningham’s appeal.
A
Mr. Cunningham was not an employee under 5 U.S.C.
§ 7511(a)(1)(A) because, at the time of his termination, he
was “serving a probationary . . . period under an initial ap-
pointment.” § 7511(a)(1)(A)(i). The information technology
specialist position at issue—a competitive service position,
SAppx. 34 (box 34); Reply Br. Appx. 7 (box 34)—required
the successful applicant to undergo a one-year probation-
ary period, 5 C.F.R. § 315.801(a)(1) (stating that the first
year of service is probationary for successful applicants to
competitive service positions). Mr. Cunningham does not
dispute that the position required a one-year probationary
period. See SAppx. 27 (box 7 of Mr. Cunningham’s appeal
form showing a checkmark next to “competitive” under the
heading “type of appointment”). 2 Rather, Mr. Cunningham
2 Before the Board, Mr. Cunningham argued that
the position did not require a one-year probationary period
because the Bureau did not notify him that the position re-
quired such a period. Cunningham, 2017 WL 1209598;
Case: 22-2088 Document: 24 Page: 6 Filed: 01/13/2023
6 CUNNINGHAM v. MSPB
argues that he was “effectively” appointed to the position
on November 20, 2015, Mr. Cunningham’s Opening Br. at
4, the day after the November 19, 2015 letter. Thus, Mr.
Cunningham continues, he was an employee under
§ 7511(a)(1)(A) on the date of his termination because he
had completed his one-year probationary period by then,
indeed before the Bureau issued the notice of termination
on December 1, 2016 (effective December 9, 2016). Mr.
Cunningham’s Opening Br. at 12.
Mr. Cunningham is incorrect. “[A]ppointment is a sin-
gle, discrete act,” Skalafuris v. United States, 683 F.2d 383,
386 (Ct. Cl. 1982), that occurs “when the last act, required
from the person possessing the power [of appointment], has
been performed,” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 157 (1803). Normally, the last act is the execution of
an SF 50 or the administration of the oath of office. See
Skalafuris, 683 F.2d at 387 (“We have in past cases empha-
sized the importance of the SF-52, SF-50, and oath of office
in determining the date or existence of an appointment
. . . .”); Vukonich v. Civil Service Commission, 589 F.2d 494,
496 (10th Cir. 1978) (“[A]n appointment becomes effective
only after a Standard Form 50, ‘Notice of Personnel Action,’
has been completed.”); Costner v. United States, 665 F.2d
1016, 1023 (Ct. Cl. 1981) (“[T]he lack of any evidence that
Appx. 3. To the extent that Mr. Cunningham raises this
argument before us, it is incorrect. The Bureau’s job post-
ing stated that the position “[r]equires a probationary pe-
riod,” Reply Br. Appx. 14, and Mr. Cunningham’s SF 50
stated that the position was “subject to [the] completion of
[a] one year initial probationary period,” SAppx. 34 (box
45). Mr. Cunningham also has not shown why lack of no-
tice would entitle him to have his position treated as not
having a probationary one-year period when, aside from
any notice issue, it did have such a period.
Case: 22-2088 Document: 24 Page: 7 Filed: 01/13/2023
CUNNINGHAM v. MSPB 7
[appellant] took an oath of office . . . rebut[s] his claim [of
appointment].”).
Here, Mr. Cunningham’s SF 50 was completed by the
Bureau’s director of human resources on December 13,
2015. SAppx. 34 (box 49). Mr. Cunningham was therefore
appointed to the position no earlier than December 13,
2015. See Skalafuris, 683 F.2d at 387; Vukonich, 589 F.2d
at 496. To the extent that the author of the November 19,
2015 letter had the power of appointment, that letter itself
makes clear that Mr. Cunningham’s appointment was
“contingent upon . . . receipt of all documents required for
appointment,” Appx. 21, including the SF 50, Vukonich,
589 F.2d at 496. And there is no basis for viewing the No-
vember 19, 2015 letter “as the ‘last act’ [of appointment]
defined in” Marbury. Skalafuris, 683 F.2d at 388 (quoting
Marbury, 5 U.S. (1 Cranch) at 156). Further, Mr. Cunning-
ham has not alleged, much less shown, that he carried out
any duties of the information-technology-specialist posi-
tion before December 13, 2015; accordingly, we have no oc-
casion to consider the scope of our precedent indicating
that a successful applicant’s work carrying out duties of a
position before the completion of the last act of appoint-
ment generally does not entitle the applicant to an appoint-
ment date earlier than the date of the last act of
appointment. See id. at 385, 388–89 (holding that the
plaintiff was appointed on March 5, 1974—the date on
which the standard form 50 was executed—even though
the plaintiff “was actively engaged in his new duties
throughout February [1974]”). Thus, Mr. Cunningham
was not appointed before December 13, 2015, so he was still
in his one-year probationary period when his employment
was terminated.
Mr. Cunningham next argues that his employment at
the U.S. Postal Service from 1993 to 2000 should count to-
ward (and satisfy) his one-year probationary period at the
Bureau. Mr. Cunningham’s Opening Br. at 13. But for
“[p]rior [f]ederal civilian service” to “count[] toward
Case: 22-2088 Document: 24 Page: 8 Filed: 01/13/2023
8 CUNNINGHAM v. MSPB
completion of probation,” the prior service must be “in the
same agency”; “in the same line of work (determined by the
employee’s actual duties and responsibilities)”; and “[c]on-
tain[] or [be] followed by no more than a single break in
service that does not exceed 30 calendar days.” 5 C.F.R.
§ 315.802(b). Here, Mr. Cunningham has not established
that his work for the Postal Service was work in the “same
agency” as the Bureau (or Department of Labor), see Pervez
v. Department of the Navy, 193 F.3d 1371, 1373 (Fed. Cir.
1999) (holding that the Army and the Navy are not the
“same agency” for purposes of section 315.802(b)), or that
his duties at the Postal Service were “in the same line of
work” as his duties at the Bureau.
For these reasons, when terminated, Mr. Cunningham
was a probationary employee, not an employee under 5
U.S.C. § 7511(a)(1)(A), and therefore could not appeal his
termination to the Board under 5 U.S.C. § 7513(d).
B
As a probationary employee, Mr. Cunningham had
only the more limited appeal rights conferred by 5 C.F.R.
§ 315.806. See Mastriano, 714 F.2d at 1155. To come
within that section, Mr. Cunningham had to adequately al-
lege that his termination “was based on partisan political
reasons or marital status” or “was not effected in accord-
ance with the procedural requirements of [5 C.F.R.
§ 315.805].” 5 C.F.R. § 315.806. We see no basis for juris-
diction on this ground.
On his appeal form to the Board, Mr. Cunningham al-
leged that he was terminated “because of conduct issues
relating to the reporting of [his] time,” SAppx. 32, not be-
cause of “partisan political reasons or marital status,”
§ 315.806(b). Later, when he petitioned the full Board for
review, he argued that his termination was because he was
considering becoming a union member. Cunningham, 2022
WL 2976331 ¶¶ 4–5; Appx. 14. But the Board properly
deemed the argument untimely. The Board also properly
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CUNNINGHAM v. MSPB 9
concluded that, in any event, the allegations would not suf-
fice to establish jurisdiction under section 315.806(b) be-
cause our court has held that termination “based on union
affiliation” is not termination for a “partisan political rea-
son[].” Mastriano, 714 F.2d at 1156; Cunningham, 2022
WL 2976331 ¶ 5; Appx. 14. Finally, Mr. Cunningham has
not presented an adequate allegation that the Bureau ef-
fected his termination without observing the procedural re-
quirements of section 315.805, which requires, among
other things, that the Bureau provide advance written no-
tice stating the reasons for a proposed termination,
§ 315.805(a), a notice that the Bureau provided, SAppx. 35.
Mr. Cunningham therefore did not allege the facts nec-
essary to appeal his termination to the Board under 5
C.F.R. § 315.806. And because he could not have appealed
his termination to the Board under 5 U.S.C. § 7513(d), as
we have concluded, the Board lacked jurisdiction and cor-
rectly dismissed his appeal.
III
Mr. Cunningham finally argues that the Board’s ad-
ministrative judge “was in cahoots with the conspiracy to
keep [him] from being employed.” Mr. Cunningham’s
Opening Br. at 8; see also Mr. Cunningham’s Reply Br. at
9 (“[I am] absolutely flabbergasted by the continued efforts
of the [Board] and the Department of Labor . . . to conspire
against [me].”).
“The requirements of due process, of course, apply to
administrative proceedings.” Bieber v. Department of the
Army, 287 F.3d 1358, 1361 (Fed. Cir. 2002) (citing Utica
Packing Co. v. Block, 781 F.2d 71, 77 (6th Cir. 1986)). And
“due process demands impartiality on the part of those who
function in judicial or quasi-judicial capacities.” Schweiker
v. McClure, 456 U.S. 188, 195 (1982). To overcome “the
presumption that the hearing officers . . . are unbiased,”
id., Mr. Cunningham must show that the administrative
judge harbored “a deep-seated favoritism or antagonism
Case: 22-2088 Document: 24 Page: 10 Filed: 01/13/2023
10 CUNNINGHAM v. MSPB
that would make fair judgment impossible,” Bieber, 287
F.3d at 1362 (quoting and extending the standard an-
nounced in Liteky v. United States, 510 U.S. 540, 555
(1994), which involved a motion to recuse a district judge
under 28 U.S.C. § 455, to bias claims under 5 U.S.C.
§ 556(b) and to due process claims); see also Smolinski v.
MSPB, 23 F.4th 1345, 1353 (Fed. Cir. 2022) (applying the
Liteky standard to a request that the case be assigned on
remand to a different MSPB administrative judge).
Here, Mr. Cunningham alleges generally that the ad-
ministrative judge was biased against him. Mr. Cunning-
ham’s Opening Br. at 8; Mr. Cunningham’s Reply Br. at 9.
But Mr. Cunningham does not allege specific facts or point
to evidence that suggests bias from the administrative
judge or from the Board. “Conclusory statements are of no
effect. Nor are . . . unsupported beliefs and assumptions.”
Maier v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985); see also
Ahuruonye v. Department of the Interior, 690 F. App’x 670,
680 (Fed. Cir. 2017) (“To establish bias, an appellant must
show more than mere disagreement with the judge’s sub-
stantive rulings.” (citing Chianelli v. EPA, 8 F. App’x 971,
979–81 (Fed. Cir. 2001))). Mr. Cunningham has therefore
not established that the administrative judge harbored
personal bias sufficient to meet the Liteky standard.
IV
We have considered Mr. Cunningham’s other argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s dismissal of Mr. Cunningham’s
appeal for lack of jurisdiction.
The parties shall bear their own costs.
AFFIRMED