Andrew Amavisca v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW P. AMAVISCA, DOCKET NUMBER
Appellant, SF-315H-20-0500-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: October 24, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew P. Amavisca , La Mirada, California, pro se.
Kathryn Price , Los Angeles Air Force Base, El Segundo, California,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, 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. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
Effective August 20, 2018, the agency appointed the appellant to a GS-11
Contract Specialist position in the competitive service, subject to a 2-year
probationary period. Initial Appeal File (IAF), Tab 8 at 22-25. On May 7, 2020,
while the appellant was still serving his probationary period, the agency notified
him that he would be terminated from his position, effective May 9, 2020, due to
his failure to demonstrate an acceptable level of performance. IAF, Tab 1 at 5, 9,
Tab 8 at 20-21. The appellant subsequently requested to resign and was allowed
to do so effective May 12, 2020. IAF, Tab 8 at 15-19.
The appellant filed an appeal with the Board challenging the termination.
IAF, Tab 1 at 1-5. He requested a hearing. Id. at 2. The administrative judge
issued orders informing the appellant of his burden to establish Board jurisdiction
over his alleged involuntary termination and ordered him to file evidence and
argument nonfrivolously alleging that his appeal was within the Board’s
jurisdiction. IAF, Tabs 3, 9. The agency moved to dismiss the appeal for lack of
jurisdiction. IAF, Tab 8, Subtab 1 at 6-11. The appellant responded to the
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administrative judge’s orders and the agency’s submissions, disputing that he had
poor performance. IAF, Tab 6 at 4-5, Tab 10 at 4-7. He further argued that the
agency did not follow its own policies when it issued the termination and that his
resignation was coerced. IAF, Tab 10 at 7-10.
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 14, Initial Decision (ID)
at 4-7. The appellant has filed a petition for review of the initial decision, and
the agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
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 proof on the issue of jurisdiction, and if he makes a nonfrivolous allegation
that the Board has jurisdiction over an appeal, he is entitled to a hearing on the
jurisdictional question. Yiying v. Department of Agriculture, 106 M.S.P.R. 178,
¶ 8 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with the administrative
judge that the appellant failed to raise a nonfrivolous allegation of Board
jurisdiction over the instant appeal.
At the time relevant to this appeal, individuals appointed to a permanent
competitive-service position at the Department of Defense, including the
Department of the Air Force, were subject to a 2-year probationary period and
only qualified as an “employee” with chapter 75 appeal rights if they completed
2 years of current continuous service. 5 U.S.C. § 7511(a)(1)(A)(ii) (2018);
10 U.S.C. § 1599e(a), (b)(1)(A), (d) (repealed 2022); Bryant v. Department of the
Army, 2022 MSPB 1, ¶ 8 & n.2. 2 Here, it is undisputed that the appellant was
2
At the time of the appellant’s appointment to his competitive-service position in
August 2018, an individual appointed to a permanent competitive-service position at the
Department of Defense (DOD) was subject to a 2-year probationary period and only
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terminated before completing 2 years of service. IAF, Tabs 1, 6, 8, 10, 12. The
administrative judge found that the appellant had less than 2 years of Federal
civilian service. ID at 5-6. The appellant does not dispute this finding on review,
and we discern no basis to disturb it.
Prior military service cannot be tacked onto a period of Federal civilian
service in order to meet the 2-year current continuous service requirement. See
Wilder v. Merit Systems Protection Board, 675 F.3d 1319, 1322-23 (Fed. Cir.
2012) (reaching the same conclusion when the applicable service requirement was
1 year under 5 U.S.C. 711(a)(1)(A)(ii), relying on 5 C.F.R. § 752.402 (defining
current continuous employment as “a period of employment or service
immediately preceding an adverse action without a break in Federal civilian
employment of a workday”)); 5 C.F.R. § 315.802(b) (reflecting that”[p]rior
civilian service . . . counts toward completion of probation” in the competitive
service). While the appellant had over 3 years of prior military service, the
administrative judge properly found that the appellant’s prior military service
could not be tacked on under 5 C.F.R. § 315.802(b). ID at 5. On review, the
appellant identifies himself as a disabled veteran but does not dispute the
administrative judge’s determination that he is not entitled to tacking. PFR File,
Tab 1 at 5. We discern no reason to disturb this finding.
A probationary employee in the competitive service may appeal to the
Board under limited circumstances set forth at 5 C.F.R. § 315.806. Henderson v.
Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). The Board has
qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2018) and 10 U.S.C.
§ 1599e (2018) if he was not serving a probationary or trial period under an initial
appointment, or if he had completed 2 years of current continuous service under other
than a temporary appointment limited to 1 year or less. IAF, Tab 11 at 41; see Bryant v.
Department of the Army, 2022 MSPB 1, ¶ 8. In December 2021, while this appeal was
pending on petition for review, Congress repealed 10 U.S.C. § 1599e and the 2 -year
probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However,
this repeal was made effective December 31, 2022, and only applied to individuals
appointed on or after that date. 10 U.S.C. § 1599e note; Bryant, 2022 MSPB 1, ¶ 8.
The repeal of 10 U.S.C. § 1599e does not affect the outcome of this appeal because the
appellant was appointed in August 2018, before the effective date of the repeal.
5
jurisdiction over termination appeals under 5 C.F.R. § 315.806 in situations in
which the agency’s action was improperly based on partisan political reasons or
marital status, or taken through improper procedures when the employee was
terminated for reasons based in whole or in part on conditions arising prior to his
appointment. Henderson, 114 M.S.P.R. 149, ¶ 9. The administrative judge found
that the appellant made no allegation that his termination was based on
pre-appointment or partisan political reasons or marital status, and the appellant
likewise has made no such argument on review. ID at 6; PFR File, Tab 1 at 4-5;
IAF, Tabs 1, 6, 12.
We have reviewed the appellant’s remaining arguments and find that he has
presented no basis for disturbing the findings of the administrative judge
concerning his failure to make a nonfrivolous allegation of Board jurisdiction.
The appellant does not challenge the administrative judge’s jurisdictional
findings, but instead, he raises arguments regarding the merits of the agency’s
termination decision. PFR File, Tab 1 at 4-5. Specifically, he appears to again
dispute the agency’s assessment that his performance was poor. PFR File, Tab 1
at 5. He also reasserts that he was coerced to resign in lieu of termination for
poor performance. Id. The appellant’s arguments as to the merits of his
termination are immaterial to the jurisdictional issue before us. Rivera v.
Department of Homeland Security, 116 M.S.P.R. 429, ¶ 13 (2011). We agree
with the administrative judge’s finding that the Board has no jurisdiction to
review the appellant’s claim that his resignation was involuntary. ID at 6-7; see
Link v. Department of the Navy, 3 M.S.P.R. 187, 189 (1980) (finding the
appellants’ alleged involuntary resignations during their probationary periods
provided them with no greater right of appeal to the Board than they would have
had if they had been terminated). Further, the administrative judge properly
determined that, absent an otherwise appealable action, the Board lacks
jurisdiction over claims that the agency committed harmful procedural error in
effectuating the appellant’s termination. ID at 7; PFR File, Tab 1 at 4-5; see
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Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 11 (2010) (finding that,
because the Board had no jurisdiction over the probationary termination appeal,
the Board also had no independent jurisdiction to adjudicate the appellant’s
discrimination and harmful error claims); Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under
5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982).
The appellant also submitted several documents for the Board’s
consideration on review, namely, a copy of Air Force Instruction 36-130, his
termination memorandum, and performance appraisals for rating periods
August 20, 2018, to March 31, 2019, and April 1, 2019, to March 31, 2020. PFR
File, Tab 1 at 6-58. These documents provide no basis to disturb the initial
decision. They are in the record below, and, in any event, none of the documents
are material to the jurisdictional issue. IAF Tab 1 at 9-11, Tab 6 at 6-13, Tab 10
at 11-63; see 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a
petition for review if it contains new and material evidence); see also Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (observing that evidence
that is already a part of the record is not new).
Accordingly, for the reasons discussed above, we deny the appellant’s
petition for review and affirm the initial decision dismissing his 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
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.
7
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
8
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,
9
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
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,
10petition for 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.
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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.