Eric Sutula v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC J. SUTULA, DOCKET NUMBER
Appellant, DC-315H-22-0299-I-1
v.
DEPARTMENT OF COMMERCE, DATE: March 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John V. Berry , Esquire, and Melissa L. Watkins , Esquire, Reston, Virginia,
for the appellant.
Christiann C. Burek , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed his probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant reasserts his argument from below that he
was not subject to a probationary period. Petition for Review (PFR) File, Tab 1.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
The administrative judge correctly found that the appellant was subject to a
probationary period pursuant to 5 C.F.R. § 315.801(a)(1), that he was terminated
prior to the completion of that probationary period, and that he, therefore, was not
an “employee” with Board appeal rights pursuant to 5 U.S.C. § 7511(a)(1).
Initial Appeal File (IAF), Tab 7, Initial Decision (ID) at 5-9. She also
appropriately found that the appellant failed to nonfrivolously allege a regulatory
right to an appeal with the Board pursuant to 5 C.F.R. § 315.806(b). ID at 9-11.
Thus, she found that the Board lacked jurisdiction to hear the appellant’s
probationary termination appeal. ID at 11. Absent jurisdiction, she correctly
declined to consider the appellant’s claims of harmful error and a due process
violation, and his challenges to the agency’s assessment of his performance,
which served the basis of his termination. Id.; see Penna v. U.S. Postal Service,
118 M.S.P.R. 355, ¶ 13 (2012). Based on our review of the record, we discern
no basis to disturb these findings.
On review, the appellant argues, among other things, that the administrative
judge’s finding that he was subject to a probationary period pursuant to 5 C.F.R.
3
§ 315.801(a)(1) was in error. Under that section, the first year of service of
an employee who received either a career-conditional or career appointment to
the competitive service is a probationary period when the employee was
appointed from a competitive list of eligibles. Because the administrative judge
found that the appellant’s appointment met the criteria of section 315.801(a)(1),
she found that the appellant was subject to a probationary period. ID at 6-7.
For the first time on review, the appellant asserts that he was hired under a Direct
Hire Authority and not a competitive list of eligibles, and that the Direct Hire
Authority under which he was hired eliminates consideration of, among other
things, competitive rating and rankings. PFR File, Tab 1 at 10-12. Generally,
the Board will not consider an argument raised for the first time on review absent
a showing that it is based on new and material evidence that was not previously
available despite the party’s due diligence. See Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016). However, because the appellant’s argument
concerns the question of jurisdiction, and jurisdiction is always before the Board,
we consider it here. See Lovoy v. Department of Health and Human Services ,
94 M.S.P.R. 571, ¶ 30 (2003).
It is undisputed that the appellant was hired under a Direct Hire Authority.
IAF, Tab 5 at 5, 20. Although that authority generally allows agencies to hire
without regard to considerations such as veteran’s preference, competitive rating
and ranking, and the rule of three, the appellant has not pointed to any law, rule,
or regulation mandating that an appointment under that authority may not be
made after consideration of other eligible candidates. PFR File, Tab 1. Indeed,
in the instant matter, the appellant was appointed after consideration was given to
applicants identified on a certificate of eligibles. IAF, Tab 5 at 8, 13. Moreover,
the appellant admits that he has no knowledge of how he was selected, and he
does not deny that he was selected from a certificate of eligibles. PFR File, Tab 1
at 10-11. Although he argues that the “certificate of eligibles” referenced by the
agency, IAF, Tab 5 at 13, is different from a “competitive list of eligibles” as
4
contemplated in 5 C.F.R. § 315.801(a)(1), PFR File, Tab 4 at 10, he does not cite
to any authority defining either term. Absent any clearly expressed intent to the
contrary, the plain meaning of the regulation controls. See, e.g., Jones v. Office
of Personnel Management, 107 M.S.P.R. 115, ¶ 8 n.4 (2007). We construe the
plain meaning of a “competitive list of eligibles” to be a certificate of eligibles
that is generated by an agency following a vacancy announcement from which it
will competitively review and select a candidate for appointment to the position.
Given that the appellant was undisputedly selected from a certificate of eligibles
following consideration from other competitive candidates, we conclude that he
was “appointed from a competitive list of eligibles” as contemplated in 5 C.F.R.
§ 315.801(a)(1), despite the Direct Hire Authority utilized by the agency. We,
therefore, agree with the administrative judge that the appellant was subject to a
1-year probationary period pursuant to 5 C.F.R. § 315.801(a)(1) 2 and that he was
terminated prior to the completion of that probationary period.
Accordingly, we discern no basis to disturb the initial decision dismissing
the appellant’s probationary termination appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2
The appellant also argues for the first time on review that his February 16, 2021
appointment was a reinstatement, and thus, that he was not subject to a probationary
period pursuant to 5 C.F.R. § 315.801(b)(2). PFR File, Tab 1 at 15-16. However, he
has not provided any other details supporting his bare assertion that his appointment
was a reinstatement. We find that his claim that his appointment to the competitive
service position was “by definition, a reinstatement” is too broad, vague, and
conclusory to constitute a nonfrivolous allegation that he was reinstated. See 5 C.F.R.
§ 1201.4(s).
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.