Charles Chibueze Nwankwo v. Department of State ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES CHIBUEZE NWANKWO, DOCKET NUMBER
Appellant, DE-315H-15-0083-I-1
v.
DEPARTMENT OF STATE, DATE: June 18, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Charles Chibueze Nwankwo, Tucson, Arizona, pro se.
Anne Joyce, Esquire, and Hollin D. Luh, Washington, D.C., 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 when: 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 application of the law to
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective July 13, 2014, the agency appointed the appellant to a Passport
Specialist position. Initial Appeal File (IAF), Tab 9 at 28. The position was in
the competitive service and subject to a 1-year probationary period. Id. On
October 17, 2014, the agency informed the appellant that it would be terminating
his appointment due to misconduct. Id. at 17. The appellant filed an appeal of
the probationary termination, which the administrative judge dismissed for lack
of jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision (ID).
The administrative judge found that the appellant did not meet the statutory
definition of “employee” under 5 U.S.C. § 7511(a)(1)(A) and did not
nonfrivolously allege that the agency terminated his employment based on marital
status, political affiliation, or preappointment reasons. ID at 6.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In his petition for review, the appellant argues that he did not
commit any misconduct that would warrant the termination of his appointment
without notice and procedural due process. Id. at 5. The agency has filed an
opposition to the appellant’s petition for review. PFR File, Tab 3.
¶4 Because the appellant was terminated from a competitive service position,
he must satisfy the definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A)
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to have Board appeal rights under 5 U.S.C. chapter 75. See Henderson v.
Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To qualify as an
“employee,” the appellant must show that he was not serving a probationary
period or had 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);
McCormick v. Department of the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir.
2002). The Standard Form 50 documenting the appellant’s appointment states
that his appointment was subject to a 1-year probationary period. IAF, Tab 9
at 28. The parties dispute the exact date that the termination became effective but
agree that the termination was effective sometime in October 2014. ID at 5 n.3.
Thus it is undisputed that the appellant’s employment was terminated prior to the
completion of 1 year of service. In his petition for review, the appellant concedes
that he was a probationary employee when the agency terminated his
appointment. PFR File, Tab 1 at 5.
¶5 An appellant who has not served a full year under his appointment can show
that he has completed his probationary period by tacking on prior service if the
prior service was: (1) rendered immediately preceding the probationary
appointment; (2) performed in the same agency; (3) performed in the same line of
work; and (4) completed with no more than one break in service of less than
30 days. Henderson, 114 M.S.P.R. 149, ¶ 10. Alternatively, an employee can
show that, while he may be a probationer, he is an “employee” with
chapter 75 appeal rights because, immediately preceding the adverse action, he
had completed at least 1 year of current, continuous service in federal civilian
service without a break of a workday. Id. As found by the administrative judge,
the appellant’s position immediately preceding his appointment by the agency
was with a private corporation and, therefore, he could not tack his prior service
to his service with the agency to complete his probationary period and did not
meet the definition of “employee” because his 1 year of current, continuous
service was not in the federal civilian service. ID at 5.
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¶6 A probationary employee may nevertheless have a limited regulatory right
to appeal if he alleges that his termination was due to discrimination based on
partisan political reasons or marital status, or for conditions arising
preappointment and the required procedures were not followed. Henderson,
114 M.S.P.R. 149, ¶ 9; 5 C.F.R. § 315.806. The appellant was terminated based
on allegations of misconduct that occurred during his probationary period. ID
at 2. The appellant did not allege that his termination was based on partisan
political reasons, marital status, or preappointment reasons. ID at 6. Although he
continues to argue on review that he did not commit the alleged misconduct, those
arguments relate to the reasons underlying the termination and are immaterial to
the jurisdictional issue. See Kellum v. Veterans Administration, 2 M.S.P.R. 65,
67 (1980). We find that the administrative judge appropriately 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 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).
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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 an appeal to the
United States 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 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.