Case: 20-1455 Document: 38 Page: 1 Filed: 08/05/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH RAY KENT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1455
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-315H-19-0661-I-1.
______________________
Decided: August 5, 2020
______________________
KENNETH RAY KENT, Greenwood Village, CO, pro se.
STEPHEN FUNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN LEAVITT.
______________________
Before PROST, Chief Judge, REYNA and TARANTO, Circuit
Judges.
Case: 20-1455 Document: 38 Page: 2 Filed: 08/05/2020
2 KENT v. MSPB
PER CURIAM.
Mr. Kenneth Ray Kent appealed his employment ter-
mination from the Internal Revenue Service (“IRS”). The
Merit Systems Protection Board (“Board”) dismissed
Mr. Kent’s appeal for lack of jurisdiction. Mr. Kent now
petitions for review. For the reasons below, we affirm the
Board’s decision.
BACKGROUND
Mr. Kent was appointed to the position of Contact Rep-
resentative at the IRS on July 26, 2004. Then, on May 27,
2005, Mr. Kent’s employment was terminated for “leave
and AWOL issues.” S.A. 39. 1
Fourteen years later, Mr. Kent filed an appeal with the
Board contesting his termination. See S.A. 1. Because
Mr. Kent was terminated during the one-year probationary
period noted on his appointment form, the administrative
judge directed Mr. Kent and the IRS to address whether
the Board had jurisdiction. S.A. 19–23. Mr. Kent had held
other federal civilian positions several years before his ap-
pointment, with a gap of several years in between. S.A. 2,
27–30, 49–52. After briefing, the administrative judge ini-
tially issued an order declaring that the Board had juris-
diction due to the length of Mr. Kent’s prior employment.
S.A. 37–38. But several weeks later, the administrative
judge reconsidered this determination in light of the mul-
tiple-year break in Mr. Kent’s service and directed
Mr. Kent to submit additional briefing regarding his em-
ployment status. S.A. 40–41; see also id. at 42–58
(Mr. Kent’s response). Next, the administrative judge di-
rected further briefing on the administrative mechanism
1 We cite the supplemental appendix (“S.A.”) filed
with the government’s response brief.
Case: 20-1455 Document: 38 Page: 3 Filed: 08/05/2020
KENT v. MSPB 3
used to appoint Mr. Kent. S.A. 59–60; see also id. at 65–75
(Mr. Kent’s response).
The administrative judge ultimately concluded that be-
cause Mr. Kent had failed to nonfrivolously allege that he
was an “employee” for the purposes of
5 U.S.C.
§ 7511(a)(1)(A), Mr. Kent lacked the right to an appeal of
his termination. S.A. 6. Accordingly, the administrative
judge dismissed the appeal for lack of jurisdiction. S.A. 7.
Mr. Kent did not seek administrative review of the admin-
istrative judge’s initial decision, which therefore became
the Board’s final decision. This petition for review fol-
lowed. 2
We have jurisdiction under
5 U.S.C. § 7703(b)(1)(A)
and
28 U.S.C. § 1295(a)(9).
DISCUSSION
I
We must affirm the Board’s decision unless we find it
to be (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c). We decide de novo whether the Board
has jurisdiction, while accepting the Board’s findings of
fact if they are supported by substantial evidence. Parrott
v. MSPB,
519 F.3d 1328, 1334 (Fed. Cir. 2008).
The Board has limited jurisdiction under
5 U.S.C.
§ 7701. Removal from employment in the competitive ser-
vice is appealable, but generally only if an individual qual-
ifies as an “employee” under
5 U.S.C. § 7511(a)(1)(A) at the
2 Mr. Kent filed a motion to supplement, presenting
arguments in response to the Board’s response brief. See
Mot. to Suppl., ECF No. 34. We accept Mr. Kent’s filing
and have considered Mr. Kent’s arguments in this opinion.
Case: 20-1455 Document: 38 Page: 4 Filed: 08/05/2020
4 KENT v. MSPB
time of removal. McCormick v. Dep’t of the Air Force,
307
F.3d 1339, 1341 (Fed. Cir. 2002). A petitioner has the bur-
den of establishing the Board’s jurisdiction. McCormick,
307 F.3d at 1340;
5 C.F.R. § 1201.56(b)(2)(i)(A). A peti-
tioner who makes a nonfrivolous allegation of jurisdiction
is entitled to an evidentiary hearing at which jurisdiction
must be established by a preponderance of the evidence.
Garcia v. Dep’t of Homeland Sec.,
437 F.3d 1322, 1344 (Fed.
Cir. 2006) (en banc). Nonfrivolous allegations are “more
than conclusory,” “plausible on [their] face,” and “material
to the legal issues.”
5 C.F.R. § 1201.4(s). An administra-
tive judge, in considering whether allegations are nonfriv-
olous, may not weigh evidence or resolve the parties’
conflicting factual assertions. Dumas v. MSPB,
789 F.2d
892, 893–94 (Fed. Cir. 1986). The judge, however, may rely
on the written record. Kahn v. Dep’t of Justice,
528 F.3d
1336, 1341 (Fed. Cir. 2008).
Under § 7511(a)(1)(A), an individual in the competitive
service is an “employee” if he is “not serving a probationary
or trial period under an initial appointment” or he “has
completed 1 year of current continuous service.” “Current
continuous service” is a period of employment immediately
preceding an adverse action without a break in federal ci-
vilian employment of a workday.
5 C.F.R. § 752.402. Even
if not “continuous,” prior service may count toward the one-
year probationary period requirement if the service was
rendered at the same agency, in the same line of work, and
with no more than one 30-day-or-less break in service.
5 C.F.R. § 315.802(b).
Alternatively, the probationary period is sometimes
not required if the individual is “reinstated.” Through re-
instatement, agencies may noncompetitively appoint indi-
viduals who were previously employed in a career or
career-conditional appointment.
5 C.F.R. § 315.401(a). An
individual appointed by reinstatement is exempted from a
probationary period if he completed one during his prior
service.
Id. § 315.801(a)(2). But reinstatement is
Case: 20-1455 Document: 38 Page: 5 Filed: 08/05/2020
KENT v. MSPB 5
discretionary, even for qualified candidates having “career”
tenure status. See id. § 315.401(a) (“[A]n agency may ap-
point by reinstatement . . . .” (emphasis added)); id.
§ 315.301(b); accord Shafer v. Dep’t of the Air Force,
935 F.2d 280 (Fed. Cir. 1991) (nonprecedential).
II
We agree with the Board that Mr. Kent has not made
a nonfrivolous allegation that he was an “employee” under
§ 7511(a)(1)(A), because he was serving in a probationary
period at the time of termination.
It is undisputed that Mr. Kent was terminated less
than one year after he started working for the IRS. S.A. 6.
And because his previous federal civilian employment had
occurred years prior, it could not count toward the proba-
tionary period. S.A. 6. The only issue, then, is whether
Mr. Kent was reinstated.
Mr. Kent’s appointment SF-50 (Notification of Person-
nel Action Form) states that his appointment was subject
to completion of a one-year probationary period. S.A. 35.
Regulations require that any individual appointed to a po-
sition in the competitive service by selection from a certifi-
cate of eligibles must serve a one-year probationary period.
5 C.F.R. § 315.801(a)(1). The Board found that Mr. Kent’s
selection was from a certificate of eligibles. See S.A. 4–5,
35, 36. Indeed, the preferred federal hiring policy is
through appointment via open competition. See
5 C.F.R.
§ 332.101(a). Consistently, Mr. Kent’s SF-50s use the OPM
codes 101 and 100, which reflect selection from a certifi-
cate. See S.A. 33 n.1, 35–36, 56. In contrast, Mr. Kent’s
previous SF-50s from reinstated positions use the OPM
code 140. See S.A. 54–57. Additionally, the appointment
SF-50 states “OPM DELE AGR CERT NO” as the legal au-
thority for the appointment, which the Board reasonably
found to indicate a delegation to the agency of OPM’s au-
thority to assemble a certificate of eligibles. S.A. 5 (citing
Case: 20-1455 Document: 38 Page: 6 Filed: 08/05/2020
6 KENT v. MSPB
5 C.F.R. § 315.301), 35–36. 3 Likewise, the word “reinstate-
ment” was absent from Mr. Kent’s appointments. S.A. 5,
35–36.
Mr. Kent argued before the Board that the IRS “fla-
grantly misapplied” OPM rules and “misclassified” him,
rendering him a probationary employee. S.A. 46. But this
allegation is conclusory. He further argued that he was
“not initially chosen for 1 of many (10 or more) contact rep-
resentative positions” and that “after ascertaining that in-
formation,” he “called the [IRS] Director,” “informed the
Director of [his] concerns” and reinstatement eligibility,
and “subsequently received a phone call and was informed
to report to” work. S.A. 47, 67–68. Even taken as true,
Mr. Kent’s allegations do not plausibly establish that he
was reinstated.
Alternatively, Mr. Kent argues that because he at-
tained “career” tenure status, see
5 C.F.R. §§ 315.301(b),
315.201(c)(2), the agency was required to reinstate him—
or at the very least, no new probationary period was re-
quired. Again we disagree. As discussed above, career sta-
tus can qualify an individual for reinstatement. But
reinstatement is a matter of discretion. See
5 C.F.R.
§ 315.401(a). And without reinstatement, Mr. Kent was re-
quired to complete a probationary period before qualifying
as an “employee” with appeal rights. See
id.
§ 315.801(a)(1); see also
5 U.S.C. § 7511(a)(1)(A).
3 Mr. Kent argues that the lack of a specific numeric
code for this authority on the face of the SF-50 renders the
authority invalid. Though the Board chided the agency for
not including the certificate number, the Board nonethe-
less disagreed with Mr. Kent, finding no legal authority in
support of his proposition. We agree with the Board.
Case: 20-1455 Document: 38 Page: 7 Filed: 08/05/2020
KENT v. MSPB 7
CONCLUSION
We have considered Mr. Kent’s other arguments but
find them unpersuasive. 4 For the foregoing reasons,
Mr. Kent has not established that he was entitled to bring
an appeal before the Board. Accordingly, we affirm the
Board’s decision dismissing his appeal.
AFFIRMED
COSTS
Each party shall bear its own costs.
4 The Board did not reach the issue of whether
Mr. Kent’s appeal was timely. Mr. Kent has asked us by
motion to review this issue on appeal in the first instance.
See Mot. to Review Entire Record, ECF No. 33. We need
not reach this issue because the question of Mr. Kent’s “em-
ployee” status is dispositive, and therefore deny the mo-
tion. We also deny Mr. Kent’s motion for an extension of
the hearing, see Mot. to Extend Hearing, ECF No. 35, as we
note that this case is resolved without oral argument, and
Mr. Kent has had a full opportunity to respond—and has
responded—to the Board’s response brief. See ECF
Nos. 26, 27, 28, 29, 31, 34.
