Simon Levi Brown v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SIMON LEVI BROWN, DOCKET NUMBER
Appellant, AT-315H-15-0806-I-1
v.
DEPARTMENT OF VETERANS DATE: May 26, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Johnny Allen, Columbia, South Carolina, for the appellant.
Edith W. Lewis, Esquire, Columbia, South Carolina, 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 in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative 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. 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, 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).
BACKGROUND
¶2 The agency appointed the appellant to the competitive-service position of
Police Officer effective September 7, 2014. Initial Appeal File (IAF), Tab 12
at 2. The appointment was subject to the completion of a 1-year probationary
period. Id. Effective August 27, 2015, the agency terminated the appellant for
conduct unbecoming an agency police officer. IAF, Tab 1 at 4. The appellant
then filed the instant appeal. Id. at 1.
¶3 The administrative judge issued an order advising the appellant that the
Board may not have jurisdiction over his probationary termination appeal and
informing him of the various grounds on which Board jurisdiction may exist over
the appeal, including how previous Federal service can be used to show that an
employee was not serving in his probationary period. IAF, Tab 3. The
administrative judge ordered the appellant to file evidence or argument
establishing a nonfrivolous allegation of jurisdiction. Id. at 4. In response to the
administrative judge’s order and a second order affording the appellant another
opportunity to submit evidence or argument, the appellant requested a hearing and
asserted that he had more than 1 year of Federal service. IAF, Tabs 7, 11-13.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction, finding, among other things, that the
appellant was terminated during his probationary period for post-appointment
reasons and that his prior service could not be combined with his service with the
agency to find that he met the statutory definition of an employee. IAF, Tab 14,
Initial Decision (ID).
¶4 The appellant has filed a petition for review essentially asserting that he
met the statutory definition of an employee based on his prior Federal service.
Petition for Review (PFR) File, Tab 1 at 1-2. The agency has not responded to
the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant has the burden of proving by preponderant evidence that his
appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i)(A). 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); Gadsden v. Department of
State, 102 M.S.P.R. 79, ¶ 6 (2006). Generally, a probationary employee who is
terminated for post-appointment reasons may appeal to the Board only if he
alleges that the action was based on partisan political reasons or marital status
discrimination. 5 C.F.R. § 315.806(a)-(b); Gadsden, 102 M.S.P.R. 79, ¶ 6.
¶6 As set forth above, the appellant was appointed to his position with the
agency on September 7, 2014, his appointment was subject to a 1-year
probationary period, and he was terminated for post-appointment reasons less
than a year later. IAF, Tab 1 at 4, Tab 12 at 2. He does not allege that his
termination was based on partisan political reasons or marital status
discrimination. Rather, the gravamen of his argument is that his prior service
with the Department of the Air Force in a term appointment, and an extension of
that term appointment, from September 10, 2012, until his resignation on July 31,
2014, should be combined with his service with the agency to find that he had
completed his probationary period and therefore met the statutory definition of an
employee with Board appeal rights. PFR File, Tab 1 at 1-2; IAF, Tabs 12-13.
¶7 To qualify as an “employee,” an appellant must show that he either is not
serving a probationary period or has completed 1 year of current continuous
service under an appointment other than a temporary one limited to a year or
less. 5 U.S.C. § 7511(a)(1)(A); Hurston v. Department of the Army, 113 M.S.P.R.
34, ¶ 9 (2010). An appellant who has not served a full year under his
appointment can show that he has completed the probationary period, and so is no
longer a probationer, by tacking on prior service if: (1) the prior service was
rendered immediately preceding the probationary appointment; (2) it was
performed in the same agency; (3) it was performed in the same line of work; and
(4) it was completed with no more than one break in service of less than 30 days.
Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R. § 315.802(b). 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 termination, he had
completed at least 1 year of current continuous service in the competitive service
without a break in Federal civilian employment of a workday.
Hurston, 113 M.S.P.R. 34, ¶ 9.
¶8 We agree with the administrative judge’s finding that the appellant did not
qualify as an “employee” under chapter 75. As determined by the administrative
judge, the appellant’s prior service cannot be combined with his agency service to
find that the appellant completed his probationary period. ID at 4. The record
indicates that the appellant had a break in Federal service from July 31, 2014, the
date on which he resigned from the Department of the Air Force, until
September 7, 2014, the date on which he was appointed to his position with the
agency. Contrary to the appellant’s assertions on review, this break in service
exceeded 30 days. In addition, the service was with a different Federal agency.
Thus, the appellant has failed to show that he is no longer a probationer. In
addition, the appellant has failed to show that he completed at least 1 year of
current continuous service in the competitive service without a break in Federal
civilian employment of a workday. Thus, the administrative judge correctly
found that he does not meet the statutory definition of an employee. ID at 4.
¶9 On review, the appellant appears to renew the motion to compel discovery
that he filed below. PFR File, Tab 1 at 2; IAF, Tab 9. In that motion to compel,
the appellant sought information relating to the merits of the agency action and
the penalty selection. IAF, Tab 9. The administrative judge stayed discovery,
stating that she would address the motion to compel if she found jurisdiction over
the appeal. IAF, Tab 11. We discern no error in the administrative judge’s
actions given the lack of Board jurisdiction over this appeal. Bayne v.
Department of Energy, 34 M.S.P.R. 439, 443 (1987) (holding that administrative
judges have broad authority in discovery matters and, absent a showing of abuse
of such discretion, the Board will not substitute its judgment for that of the
administrative judge concerning discovery), aff’d, 848 F.2d 1244 (Fed. Cir.
1988) (Table).
¶10 Thus, we affirm the initial decision dismissing the appeal for lack of
jurisdiction. To the extent that the appellant is raising claims of unlawful
discrimination, as the administrative judge found, absent an otherwise appealable
action within the Board’s jurisdiction, the Board lacks jurisdiction to decide the
appellant’s discrimination claims. 2 Wren v. Department of the Army, 2 M.S.P.R.
1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
2
The appellant has submitted attachments to his petition for review. PFR File, Tab 1.
Because they appear to be copies of documents from the record below, they are not
new, and therefore do not provide a basis for review. PFR File, Tab 1; see Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (determining that evidence that
is already a part of the record is not new); 5 C.F.R. § 1201.115 (setting forth the
Board’s criteria for granting a petition for review).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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).
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 and 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 U.S. 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.