UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STERLING EDWARD GUY, JR.,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0731-14-1067-I-1

DATE: September 11, 2015

THIS ORDER IS NONPRECEDENTIAL1

Sterling Edward Guy, Jr., Portsmouth, Virginia, pro se.

Darlene M. Carr, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal as untimely filed. For the reasons discussed below, we 

GRANT the appellant’s petition for review, REVERSE the initial decision, and 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND the case to the regional office for further adjudication in accordance 

with this Order.

BACKGROUND

¶2 The appellant served as a welder with the Department of the Navy (Navy) in 

Norfolk, Virginia. Initial Appeal File (IAF), Tab 6 at 13. The Office of 

Personnel Management (OPM) issued the appellant notice on May 1, 2014, that it 

was proposing to direct the Navy to remove him from employment based upon a 

negative suitability determination made pursuant to 5 C.F.R. part 731. Id. 

at 40-43. OPM informed the Navy the same day that it was proposing to direct 

the appellant’s removal and that it had issued him notice to that effect. Id. 

at 63-64. In its notice to the Navy, OPM specified that “the proposed actions in 

this case are being taken under the authority vested in OPM by 5 CFR 5.3 and 

731.201-304.” Id. at 64. The appellant submitted a written response to OPM, id. 

at 44-52, and on July 21, 2014, OPM issued the appellant notice that it was, 

among other things, directing the Navy to remove him from employment within 

5 days of its receipt of OPM’s notice, id. at 20-23. OPM, however, did not send 

this notice directly to the appellant, but instead sent it to the Navy with directions 

for it to send the notice to the appellant. Id. at 33-36.

¶3 The appellant filed an initial appeal of his removal on September 5, 2014. 

IAF, Tab 1. In his appeal, the appellant alleged that he was first notified of his 

removal on August 8, 2014. Id. at 5. The administrative judge issued an 

acknowledgement order directing the appellant to establish the timeliness of his 

appeal. IAF, Tab 3. The appellant, however, did not respond to the 

administrative judge’s order, and the administrative judge subsequently issued an 

initial decision dismissing the appeal as untimely filed without good cause shown. 

IAF, Tab 7, Initial Decision (ID). In her initial decision, the administrative judge 

found that OPM notified the appellant of his removal on July 21, 2014, and that 

under the Board’s regulations, his appeal had to be filed no later than August 25, 
3

2014. ID at 3. Because the appellant filed his appeal on September 5, 2014, and 

because he did not respond to the timeliness order, the administrative judge found 

no evidence of good cause to accept the late appeal, and she dismissed it as 

untimely filed. ID at 3-4.

¶4 The appellant has filed a petition for review asserting that he first learned of 

his removal on August 8, 2014, and that his initial appeal thus was timely. 

Petition for Review (PFR) File, Tab 1 at 3. In lieu of filing a response in 

opposition, OPM submitted several requests for extensions of time, which the 

Clerk of the Board granted, asserting that the parties either were negotiating, or 

had negotiated, a settlement of the appeal. PFR File, Tabs 3, 6. The parties, 

however, never submitted a signed settlement agreement resolving the matter, and 

the Board issued a show cause order directing OPM to respond to the appellant’s 

petition for review and to address the significance, if any, of the Navy’s notice to 

the appellant on August 7, 2014, that he was being terminated during his 

probationary period. PFR File, Tab 7. OPM has filed a response to the show 

cause order arguing that the appeal should be dismissed as settled based on an 

oral agreement between the parties. PFR File, Tab 13 at 2-3. In its response, 

OPM also submits that the Navy’s August 7, 2014 decision letter has no legal 

force or effect on the appellant’s removal under 5 C.F.R. part 731. Id. at 4-5. As 

to the timeliness of the appellant’s appeal, however, OPM concedes that the 

appellant first received a copy of OPM’s letter directing his removal on August 7, 

2014. Id. at 5.

ANALYSIS

There is insufficient evidence in the record to dismiss the appeal as settled.

¶5 As a matter of policy, the Board favors settlement of actions between an 

agency and its employees. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 

148 (1988). Before the Board will dismiss an appeal as settled, however, the 

Board must decide whether the parties have entered into a settlement agreement, 
4

understood its terms, and agreed to have the agreement entered into the record for 

enforcement by the Board. Id. at 149. Although the Board will dismiss an appeal 

as settled pursuant to an oral settlement agreement, as with any settlement, the

Board must ensure that there is sufficient support reflecting that the parties 

entered into such an agreement, and that they understood and agreed to the 

material terms of the oral agreement. See McCarter v. Department of the 

Navy, 114 M.S.P.R. 599, ¶ 10 (2010).

¶6 We find insufficient evidence in the record demonstrating that the parties 

entered into a settlement. Although the agency’s representative asserts on review 

that the appellant stated he intended to sign and return a written settlement 

agreement to OPM by the end of May 2015, there is no evidence in the record that 

the appellant signed such an agreement. The appellant’s alleged verbal assertion 

that he intended to sign a proposed settlement agreement, moreover, does not 

transform the proposed agreement into a binding oral contract resolving the 

appeal. Even if we were to construe the appellant’s putative intent to settle his 

appeal as an oral settlement, there is nothing in the record explaining or outlining

the terms of the agreement that would allow the Board to conduct a review of the 

agreement and ensure that the parties understood and agreed to its material terms 

before dismissing the appeal. Id. We therefore find no basis to dismiss the 

appeal as settled.2

The appellant filed a timely initial appeal of his removal.

¶7 An appeal of an agency action generally must be filed no later than 30 days 

after the effective date of the action being appealed, or 30 days after the date of 

the receipt of the agency’s decision, whichever is later. See Miranne v. 

Department of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); 5 C.F.R. § 1201.22(b). 

 2 As previously explained in the show cause order, should the parties reach a settlement 

of this appeal on remand, they may submit a signed copy of the agreement to the 

administrative judge and request that the appeal be dismissed.
5

Pursuant to 5 C.F.R. § 1201.23, however, 5 days are added to a party’s deadline 

for responding to a document served on the party by mail.

¶8 Here, the record reflects that, although OPM issued its decision letter 

directing the Navy to remove the appellant from employment on July 21, 2014, he

did not receive a copy of this letter until August 7, 2014. IAF, Tab 6 at 38. 

Additionally, there is evidence in the record that the Navy asked OPM about the 

status of the appellant’s proposed removal on August 6, 2014, and that OPM 

agreed to resend the decision letter to the Navy later that day. Id. at 37. Thus, 

although OPM issued a letter to the Navy on July 21, 2014, directing the 

appellant’s removal from employment, the evidence reflects that the Navy did not 

receive this letter until August 6, 2014, and that the appellant did not receive this 

letter until 1 day later. See id. Because the appellant first received OPM’s 

decision letter on August 7, 2014, we find that he timely filed his appeal on 

September 5, 2014. Therefore, the administrative judge’s initial decision 

dismissing the appeal as untimely filed is reversed.

The appellant has established the Board’s jurisdiction over his appeal pursuant to 

5 C.F.R. part 731.

¶9 In our prior show cause order, we directed OPM to address the significance 

of the Navy’s August 7th decision letter purporting to remove the appellant from 

employment during his probationary period. PFR File, Tab 7; see IAF, Tab 2 

at 14-15. In response, OPM asserts that the Navy’s letter has no legal impact on 

the appellant’s removal because it had previously directed the Navy to remove 

him based upon a negative suitability determination pursuant to 5 C.F.R. part 731. 

PFR File, Tab 1 at 4-5. Based upon our review of the relevant documents in the 

record, we agree with OPM. For the reasons that follow, we find there is 

preponderant evidence that the appellant was removed from employment based 

upon a negative suitability determination and that the Board has jurisdiction over 

the appellant’s appeal pursuant to 5 C.F.R. § 731.501.
6

¶10 The Board generally looks to the totality of the circumstances to determine 

the nature of an employee’s separation from employment. See Fox v. Department 

of the Army, 120 M.S.P.R. 529, ¶ 22 (2014). The Board has found, moreover, that 

the mere fact that an agency informs an appellant of a right of appeal to the Board 

does not confer jurisdiction on the Board. See Poole v. Department of the 

Army, 117 M.S.P.R. 516, ¶ 20 (2012). Here, the record reflects that OPM 

informed the Navy in February 2014, that it was assuming jurisdiction and 

responsibility for adjudicating the appellant’s suitability for employment, and it 

issued the appellant notice in March 2014, that it was proposing to direct his 

removal based upon a negative suitability determination. IAF, Tab 6 at 40-43, 

63. OPM, moreover, issued a written decision on July 21, 2014, outlining the 

grounds for directing the appellant’s removal under 5 C.F.R. § 731.202. Id. at 

20-23. 

¶11 The only countervailing evidence in the record suggesting some other 

reason for removing the appellant is the Navy’s August 7th decision letter, which 

is captioned “Notification of Discharge from Appointment During Probationary 

Period,” and which contains an explanation of appeal rights to the Board for 

probationary employees seeking to challenge their termination on the limited 

grounds available to probationers under 5 C.F.R. §§ 315.805-806. IAF, Tab 2 

at 14-15; Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013)

(outlining the limited grounds considered in a probationary termination appeal). 

The nature of the appeal rights contained in an agency’s decision letter, however, 

generally does not define or establish the Board’s jurisdiction. See

Poole, 117 M.S.P.R. 516, ¶ 20. The substance of the Navy’s decision letter, 

moreover, reflects that, although the appellant was being removed during his

probationary period, his removal was the result of a negative suitability 

determination rendered by OPM. IAF, Tab 2 at 14. Additionally, the Navy

received OPM’s letter directing the appellant’s removal the day before it issued 

its August 7th decision letter, thus strongly suggesting that the Navy issued its 
7

letter in response to OPM’s directive. IAF, Tab 6 at 37. Finally, although not 

dispositive, the Navy issued a Standard Form 50 (SF-50) on August 8, 2014, 

effecting the appellant’s removal under 5 C.F.R. § 731.201, thus also suggesting 

that his removal was the result of OPM’s negative suitability determination, and 

not based on its own suitability conclusion.

3

 See id. at 13; Scott v. Department of 

the Air Force, 113 M.S.P.R. 434, ¶ 8 (2010) (finding that an SF-50 is not a 

legally operative document that controls an employee’s status and rights).

¶12 Based on the totality of the circumstances, we find that the Navy removed 

the appellant from employment at OPM’s direction based upon a negative 

suitability determination and that the Board has jurisdiction over the appeal under 

5 C.F.R. part 731. The appellant’s appeal is remanded to the administrative judge 

for further adjudication and a hearing, if the appellant requests one.

ORDER

¶13 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

 3 We acknowledge that, pursuant to 5 C.F.R. §§ 731.103 and 731.203, an agency may 

remove an appointee or employee for suitability reasons under 5 C.F.R. part 315 during 

his probationary period. See Gamble v. Department of the Army, 111 M.S.P.R. 529, 

¶¶ 15-19 (2009), modified on other grounds by Scott v. Office of Personnel 

Management, 116 M.S.P.R. 356 (2011), modified on req. for recons., 117 M.S.P.R. 467

(2012). If an agency wishes to remove an appointee or employee under these 

provisions, the employing agency must inform OPM within 30 days of taking the 

action. See id., ¶¶ 16, 18-19; 5 C.F.R. § 731.203(g). There is no evidence in the record 

that the agency informed OPM that it removed the appellant under 5 C.F.R. part 315.
8

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board