Johnson v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SHIKIK T. JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3096
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH315H110386-I-1.
___________________________
Decided: October 5, 2012
___________________________
SHIKIK T. JOHNSON, of Tinton Falls, New Jersey, pro
se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
JOHNSON v. MSPB 2
Before LINN, REYNA and WALLACH, Circuit Judges.
PER CURIAM.
Petitioner pro se, Shikik T. Johnson (“Dr. Johnson”)
petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) dismissing his claim
for lack of jurisdiction. Johnson v. Dep’t of the Army, PH-
315H-11-0386-I-1 (M.S.P.B. Jan. 20, 2012). Respondent’s
Appendix (“RA”) 1-11. Because the Board’s determina-
tion was in accordance with law, we affirm.
BACKGROUND
Dr. Johnson was hired as an Electronics Engineer
with the Department of the Army (“Army”) on September
13, 2010, subject to a one year probationary period. For
nine months he held this position at the U.S. Army Com-
munications-Electronic Research Development and Engi-
neering Center in Fort Monmouth, New Jersey. On June
13, 2011, prior to the expiration of the one year proba-
tionary period, Dr. Johnson was advised by letter that he
was terminated due to poor performance. Dr. Johnson
timely filed an appeal with the Board, alleging that his
termination was the result of conspiracy and sabotage.
The Merit Systems Protection Board Administrative
Judge (“AJ”) assigned to his case issued a show cause
order requiring Dr. Johnson to establish that the Board
had jurisdiction over his claim. In the show cause order,
the AJ explained that Dr. Johnson may not have a statu-
tory right of appeal because as a probationary employee
his rights were limited by regulation. RA29-30 (citing 5
C.F.R. §§ 315.805, 315.806). The show cause order plainly
stated that a probationary employee’s appeal of adverse
agency actions could go forward only if (1) the termination
action was based in whole or in part on matters occurring
prior to the appointment, or (2) the termination was based
3 JOHNSON v. MSPB
on partisan political reasons, or was the result of dis-
crimination because of marital status. The AJ advised
Dr. Johnson that even if he had not served a full year
under his appointment, he could show that he had com-
pleted his probationary period by tacking on prior federal
service. Dr. Johnson responded to the show cause order
by disputing the Army’s evaluation of his job performance
in the termination letter. He did not address the AJ’s
stated jurisdictional concerns.
On August 18, 2011, the AJ issued an initial decision
dismissing Dr. Johnson’s appeal for lack of jurisdiction.
The initial decision found, inter alia, that Dr. Johnson
was a probationary employee and he had failed to present
specific, non-frivolous allegations that his termination
was in any way related to partisan political reasons or his
marital status. Dr. Johnson appealed to the full Board
and raised for the first time that his termination was
actually a result of his marital status because his superi-
ors had previously made “coy” and “somewhat begrudging
remarks” about his single status—apparently suggesting
that because he did not have family obligations, he “could
find a job anywhere.” RA82. He also argued for the first
time that the Army treated him with ethnic and racial
bias. Id. The Board affirmed the AJ’s initial decision.
This appealed followed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
With limited exceptions that are inapplicable here,
the Civil Service Reform Act exempts probationary em-
ployees from appeals as a matter of right for adverse
removal actions. 5 U.S.C. § 7511(a)(1)(A). Section 7511
defines the term “employee” for purposes of jurisdiction as
someone “(i) who is not serving a probationary or trial
period under an initial appointment; or (ii) who has
JOHNSON v. MSPB 4
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).
The appellant has the burden of proving by a prepon-
derance of the evidence that the Board has jurisdiction
over the action being appealed. 5 C.F.R. § 1201.56(a)(2);
see also Arnold v. Merit Sys. Prot. Bd., 360 F. App’x. 151,
153 (Fed. Cir. Jan. 8, 2010). Our review of the Board’s
determination that it lacked jurisdiction is a question of
law that we consider de novo, Bennett v. Merit Sys. Prot.
Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011), but we are
limited by statute in reviewing underlying factual find-
ings. 5 U.S.C. § 7703(c). We will only set aside agency
actions, findings, or conclusions if we find them to be “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” Id.;
see also Bennett, 635 F.3d at 1218.
Dr. Johnson primarily argues that his termination
was wrongful because the Army inaccurately and/or
speciously evaluated his performance as an Electronics
Engineer. Nonetheless, the AJ correctly recognized that
the substance of an employment decision is not review-
able for a probationary employee. Notably, at the time
Dr. Johnson filed his appeal with the Board, Dr. Johnson
was asked whether he was “serving a probationary or
trial period at the time of the decision or action you are
appealing?” He answered “Yes.” RA17.
Although Dr. Johnson conceded that he did not fit
within the meaning of “employee” in § 7511 because he
was terminated during the probationary period, the AJ
considered the full record and recognized that Dr. John-
son had prior federal service in the year 2006. The AJ
5 JOHNSON v. MSPB
analyzed whether the prior federal service could be
counted towards the completion of the probationary
period — i.e., “tacked” — to show that Dr. Johnson was
not subject to the appellate restrictions of a probationary
employee. The AJ concluded that Dr. Johnson failed to
make any assertion that his prior service could be counted
towards the probationary period because the prior service
would have to be (1) rendered immediately preceding the
probationary appointment; (2) performed in the same
agency; (3) performed in the same line of work; and (4)
completed with no more than one break in service of less
than 30 days. 5 C.F.R. § 315.802(b); Hurston v. Dep’t of
the Army, 113 M.S.P.R. 34, ¶ 9 (2010); see also Vannoy v.
Dep’t of Air Force, 73 F.3d 380 (Fed. Cir. 1995).
Dr. Johnson appears to now argue that he satisfied
the one year probationary period under a “tacking” theory
because, prior to his employment with the Army, he
worked in the same capacity as a contractor with the
private company Sabre Systems, Inc. (“Sabre”). Because
Dr. Johnson’s employment as a contractor with the pri-
vate entity Sabre is not “Federal” in nature, Dr. Johnson
cannot rely on this period for tacking purposes. 5 C.F.R. §
315.802(b) (requiring “prior Federal civil service”). Thus,
we agree with the conclusion that Dr. Johnson does not
qualify as a non-probationary “employee” pursuant to 5
U.S.C. § 7511.
As a probationary employee, the bases on which Dr.
Johnson can appeal his termination are strictly limited to
those defined by regulations promulgated by the Office of
Personnel Management:
Paragraph (b) provides a right to appeal a termi-
nation based on discrimination because of “parti-
san political reasons or marital status.” 5 C.F.R. §
315.806(b) (1995). Paragraph (c) provides a right
JOHNSON v. MSPB 6
to appeal a termination under section 315.805
(pre-appointment conditions) on the ground that it
“was not effected in accordance with the proce-
dural requirements of that section.” 5 C.F.R. §
315.806(c) (1995). Finally, section 315.806(d) pro-
vides a right to appeal a termination based on dis-
crimination, including sex discrimination, but
“only if such discrimination is raised in addition to
one of the issues stated in paragraph (b) or (c) of
this section.” 5 C.F.R. § 315.806(d) (1995).
Pierce v. Gov’t Printing Office, 70 F.3d 106, 108 (Fed. Cir.
1995). In this case, the Board properly found that Dr.
Johnson failed to satisfy the jurisdictional requirements
because he had not alleged he was terminated for pre-
appointment reasons, see § 315.805, and he had not
alleged the termination was based on partisan political
reasons or was the result of discrimination due to marital
status. See § 315.806(b).
We also agree with the Board that Dr. Johnson’s ar-
gument that he was discriminated against for being
unmarried was not presented to the AJ in response to the
show cause order. 1 Hubbard v. Merit Sys. Prot. Bd., 605
F.3d 1363, 1366 (Fed. Cir. 2010) (noting that a petitioner
who fails to appropriately respond to an administrative
judge’s order does so at her own peril and will not later be
1 Even if the Board had accepted Johnson’s belated
argument that his supervisors made comments about his
single status, Johnson did not assert facts which, if
proven, would demonstrate that married employees were
treated differently than unmarried employees. Chase-
Baker v. U.S. Dep’t of Justice, 198 F.3d 843, 845 (Fed. Cir.
1999) (a non-frivolous allegation of marital status dis-
crimination requires factual assertions of disparate
treatment between married and unmarried employees);
Stokes v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed.
Cir. 1985).
7 JOHNSON v. MSPB
allowed to supplement contentions). To the extent that
Dr. Johnson alleges that his termination was motivated
by racial animus, he failed to raise this allegation in
response to the order to show cause. Even so, a claim of
racial discrimination falls within the Board’s jurisdiction
only if the Board otherwise has jurisdiction over the
Army’s adverse action, which it did not in this case. See 5
C.F.R. § 315.806(d); Wilder v. Merit Sys. Prot. Bd., 675
F.3d 1319, 1323 (Fed. Cir. 2012) (citing Cruz v. Dep’t of
the Navy, 934 F.2d 1240, 1245–46 (Fed. Cir. 1991) (en
banc)).
CONCLUSION
Accordingly, Dr. Johnson has not met his burden in
establishing that the Board has jurisdiction over this
appeal. The Board correctly concluded that it lacked
jurisdiction to review the Army’s termination decision
because Dr. Johnson was a probationary employee with
less than one year of current continuous service, and he
failed to allege that his termination was the product of
conditions arising before his appointment, or discrimina-
tion based on partisan political reasons or marital status.
The decision of the Board is hereby
AFFIRMED
COSTS
No costs.