Pashayev v. Merit Systems Protection Board , 544 F. App'x 1006 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKSHAN S. PASHAYEV,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
DEPARTMENT OF THE INTERIOR,
Intervenor.
______________________
2012-3214
______________________
Petition for review of the Merit Systems Protection
Board in No. DA315H110616-I-1.
______________________
Decided: November 26, 2013
______________________
JOHN-MICHAEL LAWRENCE, John-Michael Lawrence,
LLC, of New Orleans, Louisiana, argued for petitioner.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With her on the brief were
2 PASHAYEV v. MSPB
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
JANE W. VANNEMAN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for intervenor.
With her on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and SCOTT D. AUSTIN, Assistant Director.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Rakshan S. Pashayev (“Pashayev”) petitions for re-
view of the final decision of the Merit Systems Protection
Board (“Board”), which dismissed his appeal for lack of
jurisdiction under 5 C.F.R. § 315.806. Because the Board
lacks jurisdiction over Pashayev’s petition, we affirm.
BACKGROUND
On November 21, 2010, Pashayev began his employ-
ment as an Inspector (Offshore Operations and Safety) in
the Department of Interior’s (“Interior”) Bureau of Ocean
Energy Management, Regulation and Enforcement.
Upon starting employment, Pashayev was subject to a one
year probationary period. On both September 29, 2010,
and November 22, 2010, he submitted a Declaration for
Federal Employment (“Declaration”), stating that he had
not been “fired from any job for any reason” during the
previous five years. When submitting both of these
Declarations, Pashayev certified that, to the best of his
knowledge, the information he provided was “true, cor-
rect, complete, and made in good faith” and that he un-
derstood that “a false or fraudulent answer to any
question or item on any part of this declaration or its
attachments may be grounds” for not hiring, or for termi-
nation after he began work. The record shows that,
PASHAYEV v. MSPB 3
despite these Declarations, prior to the commencement of
his Interior employment Pashayev had been fired from a
part-time position as a valet driver with Harrah’s Casino,
New Orleans, LA. Although he disclosed this termination
in a pre-employment interview with Office of Personnel
Management investigators, he did not disclose it on either
the pre- or post-employment Declarations.
On August 2, 2011, less than nine months after his
employment began, Pashayev was terminated from his
position. In the Notice of Termination, Pashayev was
informed that he was fired effective immediately due to
the false statements in his post-employment Declaration
submitted on November 22. The Notice of Termination
also informed Pashayev that, as a probationary employee,
he could appeal this decision only if he made a non-
frivolous allegation that his termination was due to
discrimination based on marital status or partisan politi-
cal reasons.
Pashayev appealed the termination to the Board on
August 10, 2011. The administrative law judge (“ALJ”)
advised Pashayev that, in order for the Board to hear his
case, he had to make a non-frivolous allegation of facts
that, if proven, could establish the Board’s jurisdiction.
The ALJ explained that, for probationary employees, the
Board lacks jurisdiction to hear an appeal on a termina-
tion unless a non-frivolous claim has been made that the
termination was based on partisan political reasons or
marital status under 5 C.F.R. § 315.806(b).
In response, Pashayev filed a Supplemental and
Amended Petition for Appeal where he made additional
factual allegations in support of the Board’s jurisdiction.
Pashayev alleged that he faced harassment from his
coworkers “with the knowledge and blessings of manage-
ment” due to his Russian national origin and perceived
Communist political party affiliation. He also argued
that, because he disclosed his termination from Harrah’s
4 PASHAYEV v. MSPB
Casino to the Office of Personnel Management investiga-
tors, Interior had notice of the termination. The ALJ
rejected these arguments, finding that the Board did not
have jurisdiction over Pashayev’s appeal. The Board
agreed with the ALJ’s opinion, denying Pashayev’s peti-
tion for review. Pashayev appealed to this Court.
Our review of a decision of the Board is limited. A de-
cision of the Board must be affirmed unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); Dickey v. Office of Personnel Mgmt., 419
F.3d 1336, 1339 (Fed. Cir. 2005). In this case, we review
the question of whether the Board has jurisdiction over an
appeal de novo. See Herman v. Dep't of Justice, 193 F.3d
1375, 1378 (Fed. Cir. 1999); Chadwell v. Merit Sys. Protec-
tion Bd., 629 F.3d 1306, 1309-10 (Fed. Cir. 2010).
DISCUSSION
The jurisdiction of the Board is limited. This is espe-
cially true for probationary employees. Bante v. Merit
Sys. Protection Bd., 966 F.2d 647, 649 (Fed. Cir. 1992).
Generally, probationary employees in the competitive
service who have less than one year of current, continuous
service have no statutory right to appeal a termination.
Mastriano v. Fed. Aviation Admin., 714 F.2d 1152, 1155
(Fed. Cir. 1983) (stating that “[t]here is no statutory
authorization for an appeal by probationary employees to
the MSPB” because they are not employees within the
meaning of 5 U.S.C. § 7511(a)(1)); see also Bante, 966 F.2d
at 650 (stating that “[t]he language of the current statute
establishes that Congress clearly intends review of the
termination of probationary employees be more limited
than that of other employees”); 5 U.S.C. § 7511(a)(1)
(excluding probationary employees from the term “em-
ployee”).
PASHAYEV v. MSPB 5
The Office of Personnel Management has promulgat-
ed regulations providing certain limited appellate rights
for probationary employees. Under these regulations, in
order to create Board jurisdiction over the appeal of a
termination, a probationary employee must make a non-
frivolous allegation that either 1) the termination was not
required by statute and was “based on partisan political
reasons or marital status,” 5 C.F.R. § 315.806(b); or 2) the
termination was based on a pre-employment action or
condition and “was not effected in accordance with the
procedural requirements of [5 C.F.R. § 315.805],” 5 C.F.R.
§ 315.806(c).
The regulations also provide that Pashayev has the
burden of establishing the Board’s jurisdiction by a pre-
ponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2).
As it is undisputed that Pashayev was a probationary
employee at the time of his termination, he can only meet
this burden by fulfilling one of the two sets of require-
ments for appellate jurisdiction enumerated in 5 C.F.R. §
315.806.
Pashayev asserts that his termination was procedur-
ally illegal in accordance with § 315.806(c) and that
jurisdiction should be granted on that basis. Pashayev
argues that, despite his disclosure of his earlier termina-
tion, Interior still hired him and, as a result, cannot now
fire him for withholding that same information. This
argument misinterprets Interior’s rationale behind the
termination. As stated in the Notice, Pashayev was fired
for submitting false information on the November 22
Declaration, one day after the commencement of his
employment on November 21. As such, his disclosure
does not qualify as a pre-employment action or condition
that would bring his claim under § 315.806(c). Younies v.
Merit Sys. Protection Bd., 662 F.3d 1215, 1218 (Fed. Cir.
2011) (holding that when an employee submitted a simi-
lar declaration both before and after beginning his em-
ployment, the agency could rely on only the post-
6 PASHAYEV v. MSPB
employment declaration as a basis for termination that
would take it out of the scope of § 315.806(c)).
Pashayev’s other arguments also fail to establish the
Board’s jurisdiction. First, Pashayev argues that Interi-
or’s management “acquiesced in the harassment and
charges of political party [sic] through silence and inac-
tion,” and that, given the pervasiveness of the harassment
he experienced, the management’s motive for his termina-
tion was “clearly a pretext.” Pashayev also alleges that a
senior inspector warned him to watch his back because
his coworkers would take him down for being born in the
former Soviet Union.
These conclusory statements, however, are insuffi-
cient to establish jurisdiction because Pashayev has
alleged no facts to support his belief that his alleged
harassment was the reason for his termination and has
failed to satisfy the burden of making a non-frivolous
allegation that the termination was due to partisan
political reasons. Stokes v. Fed. Aviation Admin., 761
F.2d 682, 686 (Fed. Cir. 1985) (“A merely conclusory
pleading is insufficient.”).
Discrimination on the basis of partisan political rea-
sons as enumerated in § 315.806(b) requires “discrimina-
tion based on affiliation with any political party or
candidate.” Mastriano, 714 F.2d at 1155 (adopting the
definition set forth in Sweeting v. Dep’t of Justice, 6
M.S.P.R 715 (1981)); see also Poorsina v. U.S. Merit Sys.
Protection Bd., 726 F.2d 507, 509 (9th Cir. 1984) (stating
that partisan political activity must relate to “recognized
political parties, candidates for public office, or political
campaign activities”). Although affiliation with the
Communist Party might meet this definition, Pashayev’s
assertions regarding harassment by co-workers that
focused on his Russian origin lack enough specific, con-
crete facts to satisfy 5 C.F.R. § 315.806(b)'s limitation to
PASHAYEV v. MSPB 7
allegations that the employer's actions were based on
partisan political reasons or marital status.
The regulations explain that a probationary employee
can appeal a termination allegedly based on race, color,
religion, sex, national origin, age, or handicap discrimina-
tion “only if such discrimination is raised in addition to”
discrimination based on partisan political reasons or
marital status. 5 C.F.R. § 315.806(d) (emphasis added).
As such, without first properly alleging that he was
terminated due to his partisan political views or marital
status, Pashayev cannot seek the Board’s review of termi-
nation based on his national origin. Id.; see also Wren v.
Dep’t of Army, 2 M.S.P.R. 1, 2 (1980), aff’d 681 F.2d 867
(D.C. Cir. 1982). Accordingly, Pashayev’s allegations of
Russian national origin discrimination also do not suffice
to establish the Board’s jurisdiction.
CONCLUSION
Because we agree with the Board that Pashayev did
not make a non-frivolous allegation that discrimination
based on partisan political reasons or marital status led to
his termination from his position with Interior, we affirm
the Board’s decision that it lacked jurisdiction over
Pashayev’s petition.
AFFIRMED
COSTS
Each party shall bear its own costs.