Akbar Salahuddin v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AKBAR SALAHUDDIN, DOCKET NUMBER
Appellant, CH-315H-16-0305-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 15, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rocky Gannon, Fort Knox, Kentucky, for the appellant.
Michael A. Suire, Fort Knox, Kentucky, 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 or jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial dec ision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent w ith 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 recor d 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 a competitive-service GS-6 Human
Resources Assistant position effective March 23, 2015. Initial Appeal File (IAF),
Tab 9 at 10. The appointment was subject to completing a 1-year probationary
period. Id. The agency terminated the appellant for failure to demonstrate fitness
for continued Federal employment, effective at the close of business on March 21,
2016. Id. at 12-16. He filed an appeal with the Board alleging that he should be
considered an “employee” for jurisdictional purposes because he completed 365
days of current continuous service. IAF, Tab 1 at 6.
¶3 The administrative judge provided the appellant with notice of his
jurisdictional burden and ordered him to provide evidence and argument
establishing why the appeal should not be dismissed for lack of jurisdiction. IAF,
Tab 3 at 2-5. In response, the appellant again argued that he had completed
1 year of current continuous service because he had served for 365 days. IAF,
Tab 5 at 4. He did not allege partisan political reasons or marital discrimination.
The agency responded that it properly terminated the appellant during his
probationary period. IAF, Tab 9 at 6-9.
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¶4 In an initial decision, the administrative judge dismissed the appeal without
holding the requested hearing, finding that the appellant failed to make a
nonfrivolous allegation of Board jurisdiction. IAF, Tab 1 at 2, Tab 10, Initial
Decision (ID) at 1-2. The administrative judge found that the appellant had
served in his appointment for only 364 days and, thus, that the appellant was still
a probationer when the agency terminated him before the anniversary date of his
appointment. ID at 3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He reargues that he was employed for 365 days and therefore meets
the 1 year of current continuous service requirement for Board jurisdiction under
5 U.S.C. § 7511(a)(1)(A). PFR File, Tab 1. The agency has not responded to the
petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 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). The appellant has the burden
of proving jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
¶7 Probationary employees generally have limited appeal rights before the
Board. McChesney v. Department of Justice, 55 M.S.P.R. 512, 515 (1992), aff’d,
5 F.3d 1503 (Fed. Cir. 1993) (Table). A competitive-service appointee qualifies
as an employee for the purposes of Board jurisdiction if he “is not serving a
probationary or trial period under an initial appointment; or 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); see McCormick v. Department of the
Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002) (explaining that an individual
may establish that she is a competitive-service employee under either of these
alternative definitions).
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¶8 A probationer in the competitive service who does not meet the statutory
definition of “employee” may still appeal termination decisions to the Board , but
only if he alleges discrimination because of his marital status or partisan political
affiliation or alleges that the requisite termination procedures were not followed.
5 C.F.R. §§ 315.805, 315.806; see Blount v. Department of the Treasury,
109 M.S.P.R. 174, 177 (2008). The administrative judge correctly determined
that the appellant did not allege that he was discriminated against because of his
marital status or political affiliation, nor did he allege that any termination
procedures were violated. ID at 3. Thus, we find that the appellant has not
shown that he has a right to appeal his termination on any of those grounds.
¶9 To terminate an individual while that person is still a probationer, the
separation action must be effected before the end of his tour of duty on the last
day of his probation, which is considered to be the day before the anniversary
date of his appointment. Honea v. Department of Homeland Security,
118 M.S.P.R. 282, ¶ 6 (2012), aff’d per curiam, 524 F. App’x 623 (Fed. Cir.
2013) (Table); 5 C.F.R. § 315.804(b). The anniversary date of the appellant’s
appointment was March 23, 2016, which would make March 22, 2016, the last
day of his probation. IAF, Tab 9 at 10-11. Since the appellant was terminated at
the close of business on March 21, he was terminated before the last day of his
probation. Id. at 12, 16. Therefore, we find that the agency terminated him
during his probationary period.
¶10 The appellant contends on review that he served for 365 days and thereby
met the requirement of 1 year of current continuous service. 2 PFR File, Tab 1 at
4. However, an appellant completes the 1 year of current continuous service, thus
satisfying the requirement for Board appeal rights, when he is separate d after
2
The appellant cites to 5 U.S.C. § 7511(a)(1)(C)(ii), which refers to “current
continuous service” in the context of excepted-service appointments. PFR File, Tab 1
at 4. We interpret his argument as invoking 5 U.S.C. § 7511(a)(1)(A)(ii), which also
contains this language.
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more than a year from the date on which he entered his position . 3 Calixto v.
Department of Defense, 120 M.S.P.R. 557, ¶ 19 (2014). Accordingly, the
appellant’s first year of current continuous service, like his probationary period,
would have concluded upon the end of his tour of duty on Mar ch 22, 2016. Id.(finding that the first year of current continuous service for an appellant
appointed on January 31, 2011, ended on January 30, 2012). Therefore, we
affirm the dismissal of the appellant’s 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:
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 dead line must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
3
The appellant cites Tom v. Department of the Interior, 32 M.S.P.R. 126 (1987), to
support his assertion that 365 days is equal to 1 year of current continuous service.
PFR File, Tab 1 at 4, 17-23. However, Tom does not support the appellant’s argument.
Rather, the Board in that case rejected an agency’s contention that the appellant was not
an excepted-service employee because he was in a nonpay status during the year
preceding the adverse action at issue. Tom, 32 M.S.P.R. at 128-29. Here, the appellant
was a competitive-service appointee, not an excepted-service appointee, and the agency
has not claimed that he had a break in service. IAF, Tab 9 at 10.
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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 representa tion 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.