Willie C. Julian v. Department of Justice ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIE C. JULIAN, DOCKET NUMBER
Appellant, CH-315H-16-0292-I-1
v.
DEPARTMENT OF JUSTICE, DATE: December 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeff T. Schrameck, Esquire, Plymouth, Michigan, for the appellant.
Andrew Chiang, Springfield, Virginia, 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
based on an erroneous interpretation of statute or regulation or the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contr ast, 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
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 dilig ence, 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, whic h is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective February 19, 2016, the agency terminated the appellant from his
Telecommunications Specialist position during his probationary period. Initial
Appeal File (IAF), Tab 1 at 14-15. He filed a Board appeal alleging that the
agency failed to afford him the procedural protections under 5 C.F.R. § 315.805and, alternatively, that he was an employee entitled to appeal his removal to the
Board under 5 U.S.C. § 7511(a)(1)(B). Id. at 6. The administrative judge issued
orders setting forth the law applicable to the question of the Board’s jurisdiction
and ordered the appellant to file evidence and argument showing that his appeal
was within the Board’s jurisdiction. IAF, Tabs 2-3. In response, the appellant
argued that he was an employee under 5 U.S.C. § 7511(a)(1)(C)(ii) based on his
prior service with the Internal Revenue Service (IRS). IAF, Tab 10 at 8-12.
¶3 The administrative judge issued a show cause order informing the appellant
that, because his position was in the competitive service, the relevant statutory
section was 5 U.S.C. § 7511(a)(1)(A), and that it appeared that he did not meet
the requirements of this section because his prior service with the IRS was
temporary. IAF, Tab 11. In response, the appellant asserted that his IRS service
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was not temporary because he had received a promotion and had served a
probationary period there. IAF, Tab 13 at 6-8. The appellant contended that he
had received a career‑conditional appointment with the IRS based on an offer
letter he received from the IRS, which indicated that his position was temporary
not to exceed (NTE) 1 year, but also referenced him completing a 1-year
probationary period and being placed in a conditional tenure until he completed
3 years of current continuous service. Id. at 8. The agency moved to dismiss the
appeal for lack of jurisdiction asserting that the appellant failed to nonfrivolously
allege that he was an employee under 5 U.S.C. § 7511(a)(1)(A), given that his
prior IRS service was temporary and did not count toward completing his 1-year
probationary period because it was rendered in a different agency. IAF, Tab 12
at 8-11.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 16,
Initial Decision (ID). The administrative judge found that the appellant failed to
nonfrivolously allege that he was an employee under section 7511(a)(1)(A)(i)
given that he did not allege that he was hired under an authority that precluded
the agency from imposing a probationary period and his prior IRS service
could not be credited toward completing his probationary period because it was
rendered in a different agency. ID at 4. The administrative judge further found
that the appellant failed to nonfrivolously allege that he was an employee under
section 7511(a)(1)(A)(ii) because his offer letter and Standard Form 50 (SF-50)
reference his prior IRS appointment as a temporary appointment and he did not
allege that the IRS treated his service as anything other than temporary. ID at 5.
Additionally, the administrative judge found that the Board lacks jurisdiction over
the appellant’s probationary termination appeal because the record showed that
the agency afforded him the procedural protections required b y 5 C.F.R.
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§ 315.805. 2 ID at 6. Finally, the administrative judge found that, absent an
otherwise appealable action, the Board lacks jurisdiction over the appellant’s
discrimination claims. ID at 7.
¶5 The appellant has filed a petition for review in which he asserts that the
administrative judge erred in determining that his prior appointment to the IRS
Computer Operator position was a temporary appointment. Petition for Review
(PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File,
Tab 3. The appellant has filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An individual’s right to appeal an adverse action to the Board, such as the
appellant’s termination, depends on whether he is an “employee” as defined by
5 U.S.C. § 7511(a)(1). Bell v. Department of Homeland Security, 95 M.S.P.R.
580, ¶ 15 (2004). The definition of “employee” includes “an individual in the
competitive service—(i) who is not serving a probationary or trial period under an
initial appointment; or (ii) who has 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). On review, the appellant reiterates his arguments
below that his offer letter from the IRS establishes, or at least raises, a
nonfrivolous allegation that his prior IRS service was not temporary. PFR File,
Tab 1 at 10. However, as set forth below, we agree with the administrative judge
that the appellant’s appointments to the IRS were temporary.
¶7 Effective December 30, 2013, the appellant was appointed to a GS-05
Computer Operator position with the IRS NTE December 27, 2014. IAF, Tab 12
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Despite the appellant’s contentions that the agency failed to provide him with the
materials it relied upon in proposing his termination and denied him the opportunity to
present an oral reply, PFR File, Tab 1 at 7, we agree with the administrative judge that
the agency afforded him all of the required procedural protections, to include advance
written notice of the reasons for his proposed termination, an opportunity to submit a
written response that was considered by the deciding official, and written noti ce of the
termination decision.
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at 23-24. The SF-50 documenting his appointment states that the reason for his
temporary appointment was due to high volume workload and references his
appointment as being on a full-time seasonal basis, subject to release to nonpay
status and recall to duty to meet workload requirements. Id. Effective
December 28, 2014, the agency extended the appellant’s temporary appoi ntment
NTE December 26, 2015. Id. at 25. Effective January 11, 2015, the agency
converted the appellant’s appointment to a GS-06 Computer Operator position,
still NTE December 26, 2015. IAF, Tab 13 at 17. The SF-50 documenting this
personnel action states that the appellant remained on an NTE appointment. Id.Effective March 8, 2015, the appellant was placed in a nonpay status due to the
lack of available work. IAF, Tab 12 at 26. Effective April 18, 2015, the
appellant resigned without a break in service to begin working as a
Telecommunications Specialist with the Department of Justice. Id. at 27.
¶8 Based on the totality of the circumstances, we agree with the administrative
judge that the appellant failed to raise a nonfrivolous allegation that his prior IRS
service was not temporary. The vacancy announcement for the appellant’s
position states that he was hired to a temporary position NTE 1 year. 3 PFR File,
Tab 3 at 23-27. The appellant’s offer letter also specifies that his appointment
was temporary NTE 1 year. IAF, Tab 13 at 18. Similarly, the appellant’s SF-50s
indicate that he was hired to a temporary NTE position, which was then extended
for close to an additional year. IAF, Tab 12 at 23-25; see 5 C.F.R. § 316.401(c)
3
We have considered the vacancy announcement submitted by the agency on review as
new and material evidence because the agency was not afforded an opportunity to
submit it below. See 5 C.F.R. 1201.115(d). The agency contends that it was not aware
of the IRS offer letter or the need to address its contents until the appellant submitted it
below on April 29, 2016, after the deadline for the agency’s jurisdictional response had
passed. PFR File, Tab 3 at 19. The agency further contends that it did not receive the
vacancy announcement from the IRS until after April 29, 2016. Id. The record reflects
that the agency subsequently moved for leave to file a reply to address the appellant’s
argument that the offer letter established that his IRS service was not temporary, IAF,
Tab 14, but the administrative judge issued an initial decision a few days later denying
the agency’s motion, ID at 1 n.1.
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(stating that an agency may make a temporary appointment for a specif ied period
not to exceed 1 year, which can be extended for an additional year). His SF-50s
further indicate that he had no tenure and was ineligible for Federal Employees’
Group Life Insurance (FEGLI) coverage. IAF, Tab 12 at 23-27; see 5 C.F.R.
§ 870.302(b)(1) (generally excluding employees serving under an appointment
limited to 1 year or less from FEGLI coverage).
¶9 We acknowledge that the appellant’s IRS offer letter inexplicably also
states that his temporary NTE 1-year appointment was subject to a 1-year
probationary period and references his having conditional tenure. IAF, Tab 13
at 18-23. We also have considered the vacancy announcement submitted by the
appellant on review, which differs from the vacancy announcement submitted by
the agency and contains language reflecting that, although the position was a
temporary appointment, it also was subject to a 1-year probationary period. 4 PFR
File, Tab 4 at 12-16. However, we find these documents fail to constitute a
nonfrivolous allegation that the appellant was not serving in a temporary
appointment because all of his employment documents clearly reference his
position as being temporary. See Scott v. Department of the Air Force,
113 M.S.P.R. 434, ¶ 8 (2010) (stating that the Board looks at the totality of the
circumstances in determining the nature of the appointment). We also find
unavailing the appellant’s argument that, because he was promoted from a GS-05
to GS-06 and an agency cannot promote an individual serving in a temporary
appointment except for an overseas appointment, he made a nonfrivolous
allegation that he was an employee with appeal rights. PFR File, Tab 1 at 10.
Regardless of the propriety of the agency’s actions, the totality of the
circumstances indicate that the appellant served two consecutive
temporary appointments.
4
We have considered this document, submitted by the appellant for the first time on
review, in light of the circumstances below in which the parties were denied an
opportunity to submit additional briefing on this issue.
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¶10 Finally, we find that the appellant’s reliance on Mitchell v. Merit Systems
Protection Board, 741 F.3d 81 (Fed. Cir. 2014), and Roden v. Tennessee Valley
Authority, 25 M.S.P.R. 363 (1984), to be misplaced. PFR File, Tab 1 at 13-21.
In Mitchell, the U.S. Court of Appeals for the Federal Circuit determined that an
appellant’s appointment NTE 18 months was not temporary because, among other
things, it was not limited to a period of 1 year or less and nothing indicated that
the agency ever contemplated it to be a short-term position. Mitchell, 741 F.3d
at 84-86. Similarly, in Roden, the Board held that an appellant’s service under a
series of five temporary appointments over a period of nearly 4 years with only
short breaks in service constituted continuous nontemporary service within the
meaning of 5 U.S.C. § 7511(a)(1)(B), when there was no evidence that the
appellant was employed only for a limited period of time due to a changing or
unpredictable workload or a project expected to last for only a limited period of
time. Roden, 25 M.S.P.R. at 367-68.
¶11 Here, in contrast, the appellant served two consecutive appointments, each
limited to less than 1 year. IAF, Tab 12 at 23-25. Further, his service was on a
seasonal basis to fill short-term needs as reflected in his SF-50s, which state that
the reason for his temporary appointment was due to high volume workload and
show that he was placed in a nonpay status on March 8, 2015, due to the lack of
available work. Id. at 23, 26.
¶12 Accordingly, because the appellant failed to nonfrivolously allege that he is
an employee within the meaning of 5 U.S.C. § 7511(a)(1)(A), we find that the
administrative judge properly 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
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
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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 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.