UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2016 MSPB 25 

Docket No. DE-315H-15-0241-I-1 

Stephen B. LeMaster, 

Appellant, 

v. 

Department of Veterans Affairs, 

Agency. 

July 5, 2016 

Reuben Ard, III, Helena, Montana, for the appellant. 

Letha Miller, Esquire, Denver, Colorado, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Mark A. Robbins, Member 

OPINION AND ORDER 

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

dismissed his probationary termination appeal for lack of jurisdiction. For the 

reasons discussed below, we GRANT the appellant’s petition for review, 

REVERSE the initial decision, and REMAND the case to the field office for 

further adjudication in accordance with this Opinion and Order. 
2

BACKGROUND 

¶2 Effective November 16, 2014, the appellant received an appointment to the 

competitive service position of GS‐05 Program Support Clerk, subject to a 1-year 

probationary period.1

 Initial Appeal File (IAF), Tab 7 at 31. While the appellant 

was still serving his probationary period, the agency notified him that he would 

be terminated from his position, effective February 13, 2015, due to “conduct 

issues” relating to the terms of a June 22, 2007 court-ordered probation 

agreement that was entered following his release from prison for bank fraud. Id.

at 24-27, 29, 33. The agency’s termination notice cited the terms of the 

appellant’s probation agreement, which, among other things, required him to 

inform any employer or prospective employer of his current conviction and 

supervision status, prohibited him from possessing or using a computer with 

access to any online computer service without the prior written approval of the 

 

1

 The Standard Form 50 (SF-50) concerning the appellant’s appointment indicates that 

he received a career-conditional appointment to a competitive-service position pursuant 

to the Veterans Employment Opportunities Act of 1998 (VEOA), as amended by 

section 511 of the Veterans Millennium Health Care and Benefits Act, Pub. L. 

No. 106‐117, 113 Stat. 1545 (1999). IAF, Tab 7 at 31. The relevant portion of VEOA 

requires agencies to allow preference eligibles or eligible veterans to compete for 

vacant positions when the agency will accept applications from individuals from outside 

its own workforce. 5 U.S.C. § 3304(f)(1). Prior to the 1999 amendment, appointees 

under this authority were given Schedule B appointments in the excepted service; 

however, since the 1999 amendment, such appointees receive career or 

career‐conditional appointments to the competitive-service position. See 5 U.S.C. 

§ 3304(f)(2); Brandt v. Department of the Air Force, 103 M.S.P.R. 671, ¶¶ 21‐23 

(2006). In contrast to the appointment SF-50, the agency’s November 7, 2014 letter 

notifying the appellant of his appointment describes the type and length of his 

appointment in terms that would apply to a Veterans Recruitment Appointment (VRA), 

which is distinct from a VEOA appointment. IAF, Tab 3 at 8; see 5 C.F.R. part 307. 

For purposes of this appeal, whether the appellant received a VRA or VEOA 

appointment is immaterial because, as set forth in 5 C.F.R. § 307.105, “any individual 

serving under a VRA, whose employment under the appointment is terminated within 

1 year after the date of such appointment, has the same right to appeal that termination 

as a career or career-conditional employee has during the first year of employment,” 

which includes the right to appeal what is at issue here, set forth in 5 C.F.R. § 315.806. 
3

court, and prohibited him from possessing or using any public or private data 

encryption technique or program. Id. at 24. The termination notice also stated 

that, during his employment, the appellant failed to disclose to the agency that his 

computer access and use was in violation of his probation agreement and that his 

inability to use the agency’s computer system prevented him from performing his 

job duties. Id. at 25. 

¶3 The appellant filed a Board appeal challenging his termination and 

requesting a hearing. IAF, Tab 1 at 2, 4. The administrative judge issued an 

order informing him of his burden to establish the Board’s jurisdiction and 

directing him to file evidence and argument to prove that his appeal was within 

the Board’s jurisdiction. IAF, Tab 2 at 3-5. In response, the appellant did not 

allege that he was an employee with appeal rights under 5 U.S.C. chapter 75, but 

rather, argued that the Board has jurisdiction pursuant to 5 C.F.R. § 315.806(c) 

because he was terminated for preappointment reasons and the agency failed to 

afford him the procedural protections set forth in 5 C.F.R. § 315.805. IAF, Tab 

13 at 3. He further asserted that the agency erroneously determined that his 

performance of his job duties violated his probation agreement because, in 2012, 

a modified court order was entered allowing him to access and use computers 

subject to the terms of a computer and internet monitoring program, and his 

probation officer had granted him permission to take the job after speaking with a 

human resources specialist and obtaining a copy of the position description. IAF, 

Tab 3 at 16, 22-23, Tab 10 at 5-6. 

¶4 The agency moved to dismiss the appeal for lack of jurisdiction, arguing 

that it terminated the appellant for postappointment reasons. IAF, Tab 9 at 4-8. 

According to the agency, it did not learn of the specific terms of the appellant’s 

probation agreement until 2 months after his appointment, and it subsequently 

terminated him based on the conditions of his probation, which prohibited his use 

of a computer with online access without prior court approval, and his failure to 
4

disclose that the terms of his probation agreement would prevent him from 

performing his job duties. Id. at 5. 

¶5 Without holding the appellant’s requested hearing, the administrative judge 

dismissed the appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID). 

The administrative judge ruled that the appellant was terminated for 

postappointment reasons because, although the conditions of the appellant’s 

probation existed prior to his appointment, he was not terminated based on the 

existence of the probation conditions themselves, but rather, based on his failure 

to inform the agency that he was violating the terms of his probation after he 

began his employment and used agency computer systems. ID at 8-9. 

¶6 The appellant has filed a petition for review in which he reasserts his 

argument that he was terminated for preappointment reasons and disputes the 

merits of the agency’s termination decision. Petition for Review (PFR) File, 

Tab 1 at 3-6. The agency has opposed the petition for review. PFR File, Tab 3. 

The appellant has filed a reply.2

 PFR File, Tab 4. 

ANALYSIS 

¶7 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 bears the 

 

2

 The agency served the appellant with its response on April 25, 2016. PFR File, 

Tab 3 at 9; see 5 C.F.R. § 1201.4(j), (l). The Board’s regulations provide 10 days to 

file a reply after the date of service of the agency’s response. 5 C.F.R. § 1201.114(e). 

The Clerk of the Board advised the appellant of this deadline. PFR File, Tab 2 at 1. 

However, the appellant did not file his reply until May 18, 2016. PFR File, Tab 4. The 

appellant failed to accompany his reply with a motion showing good cause for this 

untimely filing, and we see no reason to determine good cause exists based on the 

existing record. See 5 C.F.R. § 1201.114(g). Accordingly, we have not considered the 

appellant’s reply in reaching our decision in this matter. On remand, however, the 

appellant may raise the various arguments he made in his reply concerning why the 

agency erroneously determined that he was violating his probation agreement to the 

extent they are relevant to the issue of harmful error. 
5

burden of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). Under 5 C.F.R. § 315.806(c), a probationary employee 

whose termination was based in whole or in part on conditions arising before his 

appointment may appeal his termination to the Board on the ground that it was 

not effected in accordance with the procedural requirements set forth in 5 C.F.R. 

§ 315.805.

3

 In such appeals, the merits of the agency’s termination decision are 

not before the Board. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 7 

(2008). Rather, the only issue is whether the agency’s failure to follow the 

procedures prescribed in section 315.805 was harmful error. Hope, 108 M.S.P.R. 

6, ¶ 7. If there was harmful error, then the agency’s action must be set aside. Id.

¶8 We agree with the appellant that his termination was based, at least in part, 

on preappointment reasons and he was, therefore, entitled to the procedural 

requirements set forth in 5 C.F.R. § 315.805. The agency’s termination letter 

specifically cites the terms of the appellant’s June 22, 2007 court-ordered 

probation agreement. IAF, Tab 7 at 24. Both below and on review, the agency 

has maintained that it terminated the appellant based on the conditions of his 

probation agreement, as well as on his failure to disclose that such conditions 

would prevent him from performing his job duties.4

 IAF, Tab 9 at 5; PFR File, 

 

3

 The appellant does not dispute the administrative judge’s findings that he is not an 

employee who has a statutory right of appeal to the Board under 5 U.S.C. chapter 75 

and does not allege that his termination was based upon either partisan political reasons 

or marital status, which would give rise to a regulatory right of appeal under 5 C.F.R 

§ 315.806(b). ID at 7. 

4

 The agency also contends that, prior to accepting employment, the appellant failed to 

inquire as to whether the job would require computer usage that violated the terms of 

his probation agreement and failed to disclose the specific terms of his probation 

agreement. IAF, Tab 7 at 6. Such reasons, though clearly preappointment, were not 

mentioned in the agency’s termination notice and so we have not considered them. Id.

at 24-25; see Pope v. Department of the Navy, 62 M.S.P.R. 476, 478 (1994) (stating that 

an agency may not retrospectively recharacterize the expressly stated reasons for an 

action). 
6

Tab 3 at 5. The agency has argued, however, that the appellant was terminated 

based on postappointment reasons because his probation agreement was merely a 

preexisting condition that affected his postappointment performance by 

preventing him from performing his job duties. IAF, Tab 9 at 6-7; PFR File, 

Tab 3 at 6-7. 

¶9 We disagree and find that the cases that the agency relies upon in support 

of this argument are distinguishable. In Von Deneen v. Department of 

Transportation, 33 M.S.P.R. 420, 423, aff’d, 837 F.2d 1098 (Fed. Cir. 1987) 

(Table), the Board found that a probationer was terminated for postappointment 

reasons when, after his appointment, he was denied a security clearance required 

for his position, although the basis for denying the clearance was a condition that 

existed prior to his appointment. Similarly, in Rivera v. Department of the Navy, 

114 M.S.P.R. 52, ¶ 8 (2010), the Board found that, even assuming that a 

probationer’s postappointment failure to qualify for a Government credit card was 

attributable to his preappointment credit history, his termination for failure to 

secure approval for the card constituted a postappointment reason for termination 

because securing the card was a requirement of his position, which he failed to 

satisfy. 

¶10 In contrast, in the present case, the appellant was not terminated because, 

following his appointment, he was denied or failed to obtain a condition of 

employment based on a preexisting condition. Rather, he was terminated based 

on the terms of the probation agreement, a condition that existed prior to his 

appointment. Moreover, unlike Von Deneen and Rivera, it is not clear that the 

appellant’s probation agreement prevented him from performing his job duties or 

that he failed to satisfy a requirement of his position as a result of his probation 

agreement. Although the agency’s termination notice cites to the conditions of 

the appellant’s June 22, 2007 probation agreement prohibiting his computer use 

without prior court approval, IAF, Tab 7 at 24, the record reflects that such 

conditions were subsequently modified by the court on August 29, 2012, over 
7

2 years prior to the appellant’s appointment, to permit him to use and access 

computers under the terms of the U.S. Probation and Pretrial Services Office 

Computer and Internet Monitoring Program, IAF, Tab 3 at 13-15, 19-21. 

Additionally, the appellant submitted emails from his probation officer in which 

she indicates that she allowed the appellant to accept the job after speaking with a 

human resources specialist regarding the details of the job duties, obtaining a 

copy of the job description, and verifying that the agency was aware of the 

appellant’s conviction and that he was under a term of supervision. Id. at 22-23. 

In an email, the appellant’s probation officer also states that she would never 

have allowed him to accept the position if she thought that it would have been in 

violation of the terms of his probation. Id. at 16. 

¶11 We find the decision in Jones v. Department of Justice, 524 F. App’x 660

(Fed. Cir. 2013), to be instructive.5 In Jones, the agency terminated the 

employment of a probationary Cook Supervisor after receiving the results of an 

internal investigation into his misconduct in a prior position as a Correctional 

Officer. Jones, 524 F. App’x at 661-62. Although the probationer’s 

preappointment misconduct was not substantiated until the postappointment 

receipt of the report, the court found that the Board correctly concluded that he 

was terminated for preappointment reasons. Id. at 663-64. 

¶12 Similarly, here, the agency contends that it did not become aware of the 

specific terms of the appellant’s probation agreement until 2 months after he was 

appointed, and it subsequently terminated him for reasons including “the 

conditions of [his] probation” concerning computer access and monitoring. IAF, 

Tab 9 at 5; PFR File, Tab 3 at 5. We find that the agency based the appellant’s 

termination, at least in part, on the conditions of his probation and that these 

 

5

 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the 

Federal Circuit where, as here, it finds its reasoning persuasive. See, e.g., Erlendson v. 

Department of Justice, 121 M.S.P.R. 441, ¶ 6 n.2 (2014). 
8

conditions arose before his appointment. IAF, Tab 3 at 24-25, Tab 9 at 5. The 

agency concedes that the appellant identified his conviction and probation status 

on his declaration for Federal employment, dated October 24, 2014, but does not 

explain why it hired him without inquiring about the specific terms of his 

probation status. IAF, Tab 9 at 4; PFR File, Tab 3 at 4. Nor does the agency 

dispute the appellant’s assertions that his probation officer contacted a human 

resources specialist to confirm that the agency was aware of the appellant’s prior 

bank fraud conviction and that the appellant was currently on Federal supervision 

and needed to comply with all of the conditions of his supervision. IAF, 

Tab 3 at 16, 22-23, Tab 10 at 5. Even if the agency did not become aware of the 

specific conditions of the appellant’s probation agreement until after he was 

appointed, the timing of the agency’s discovery of the specific terms of his 

preappointment probation agreement does not render the appellant’s termination 

to be based on conditions arising postappointment. 

¶13 This is not to say that, after becoming aware of the terms of the appellant’s 

probation agreement, the agency could not have terminated his employment 

during his probationary period. The agency was nonetheless required to afford 

the appellant the procedural protections set forth in 5 C.F.R. § 315.805. It is 

undisputed that the agency did not provide the appellant with these procedural 

rights, which include advance notice of the termination, an opportunity to 

respond, and consideration of the response. IAF, Tab 9 at 8; see 5 C.F.R. 

§ 315.805. Therefore, the relevant inquiry is whether the agency’s failure to 

follow these procedures was harmful error. Hope, 108 M.S.P.R. 6, ¶ 7. 

¶14 It is well established that harmful error cannot be presumed; an agency 

error is harmful only when the record shows that it was likely to have caused the 

agency to reach a conclusion different from the one it would have reached in the 

absence or cure of the error. Id., ¶ 8; 5 C.F.R. § 1201.4(r). The burden is on the 

appellant to show that the procedural error was harmful. 5 C.F.R. § 1201.4(r). 

Because the administrative judge found that the Board lacks jurisdiction over this 
9

appeal, the record is not developed on the issue of whether the appellant met his 

burden of establishing that the agency would not have terminated him had it 

provided him with advance notice of the termination, an opportunity to respond, 

and consideration of his response. On remand, the administrative judge shall 

render a new decision after affording the parties the opportunity to present 

evidence and argument on this issue. 

 ORDER 

¶15 For the reasons discussed above, we find that the appellant has established 

the Board’s jurisdiction over this matter pursuant to 5 C.F.R. § 315.806(c), and 

we remand this case to the field office for further adjudication in accordance with 

this Opinion and Order. 

FOR THE BOARD: 

______________________________ 

Jennifer Everling 

Acting Clerk of the Board 

Washington, D.C.