Tyrone Crawford v. Federal Retirement Thrift Investment Board ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYRONE CRAWFORD, DOCKET NUMBER
Appellant, DC-0752-15-0518-I-1
v.
FEDERAL RETIREMENT THRIFT DATE: July 23, 2015
INVESTMENT BOARD,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.
Dharmesh Vashee and Sivram D. Prasad, 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
2
interpretation of statute or regulation or the erroneous application of the law to
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 The agency terminated the appellant from the excepted service position of
Attorney Advisor during his trial period for inadequate performance. Initial
Appeal File (IAF), Tab 7 at 14. The appellant appealed the agency’s action. IAF,
Tab 1. The administrative judge found that the appellant was not an employee
with Board appeal rights because he was serving a probationary or trial period in
the excepted service. IAF, Tab 9, Initial Decision.
¶3 In his petition for review, the appellant asserts that he has a
constitutionally-protected property interest in his position and he has a right to
notice and an opportunity to respond before he can be terminated, rights which
the agency did not afford him. Petition for Review File, Tab 1.
¶4 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Only an “employee,” as defined under
5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an adverse
action such as a removal. Barrand v. Department of Veterans
Affairs, 112 M.S.P.R. 210, ¶ 13 (2009); see 5 U.S.C. §§ 7511(a)(1), 7512(1),
7513(d). A nonpreference-eligible individual in the excepted service is an
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“employee” within the meaning of 5 U.S.C. § 7511 only if he: (1) is not serving a
probationary or trial period under an initial appointment pending conversion to
the competitive service; or (2) has completed 2 years of current continuous
service in the same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i)-
(ii). 2 Here is it undisputed that the appellant was not preference-eligible.
Further, the record reflects that he was serving a trial period, and he had served in
his position for less than 1 year. Thus, we find that he was not an employee and
the Board does not have jurisdiction over his appeal. Id.¶5 The appellant’s assertion that he was improperly denied a constitutional
right to due process because he had a property interest in his position is
unavailing. The appellant’s arguments that his termination did not comply with
constitutional requirements are not within the Board’s jurisdiction because he was
not an “employee” with chapter 75 appeal rights at the time of his termination.
See McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386(2013). Accordingly, we find that the administrative judge properly dismissed
this 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:
2
As an individual appointed in the excepted service, the appellant has no regulatory
right to appeal under 5 C.F.R. § 315.806, which applies only to individuals in the
competitive service. See Barrand, 112 M.S.P.R. 210, ¶ 13. The agency’s erroneous
notice to the appellant that he had rights under 5 C.F.R. § 315.806 to appeal to the
Board if he believed that the agency’s action was taken based on his marital status or
for partisan political reasons, could not expand the Board’s jurisdiction. See IAF, Tab 7
at 14.
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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 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
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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.