UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBIN R. MCFARLAND,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

PH-315H-14-0578-B-1

DATE: February 13, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robin R. McFarland, Harrisburg, Pennsylvania, pro se.

Roger L. Gumbs, Jr., Baltimore, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

which dismissed her termination appeal for lack of jurisdiction and denied her 

request for corrective action under the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

(USERRA). Generally, we grant petitions such as this one only when: 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 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. See

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, and based on the 

following points and authorities, 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

¶2 The appellant filed a Board appeal challenging her termination and 

requesting corrective action under USERRA. Initial Appeal File (IAF), Tab 1. 

The administrative judge dismissed the appeal for failure to prosecute. IAF, Tab 

13, Initial Decision. The appellant filed a petition for review of that decision. 

The Board vacated the decision and remanded the case for further adjudication 

because there had been an issue with mailed service of Board orders (and possibly 

the agency file) due to an incorrect address for the appellant in Board records. 

Petition for Review File, Tab 4, Remand Order. On remand, the appellant waived 

any right she had to a hearing. Remand Appeal File (RAF), Tab 20 at 4. Thus,

the administrative judge based the remand initial decision solely on the written 

record. RAF, Tab 23, Remand Initial Decision (RID). He dismissed the 

appellant’s termination appeal for lack of jurisdiction and denied corrective 

action under USERRA. RID. The appellant has filed a petition for review 
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challenging the remand initial decision. Remand Petition for Review (RPFR) 

File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly dismissed the appellant’s termination appeal 

for lack of jurisdiction.

¶3 The Board’s jurisdiction is not plenary; it 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 burden of proving, by preponderant evidence, that the Board has jurisdiction 

over her appeal.2 5 C.F.R. § 1201.56(a)(2)(i). In order to establish Board 

jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, 

show that she satisfies one of the definitions of “employee” in 5 U.S.C. 

§ 7511(a)(1). 5 U.S.C. § 7513(d); Walker v. Department of the 

Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive service, 

this means that she must either: (1) not be serving a probationary or trial period 

under an initial appointment; or (2) have completed 1 year of current continuous 

service under other than a temporary appointment limited to 1 year or less. 3 5 

U.S.C. § 7511(a)(1)(A); Walker, 119 M.S.P.R. 391, ¶ 5. The administrative judge 

properly found that the Board lacks jurisdiction over the appeal because the 

appellant was serving a probationary period and she had not completed at least 1 

year of federal service. RID at 6-7.

 2 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).

3 Individuals in the competitive service who do not satisfy the definition of “employee” 

under 5 U.S.C. § 7511(a)(1)(A) may nevertheless have the right to appeal a termination 

to the Board under 5 C.F.R. § 315.806 based upon assertions that: (1) the employee was 

discriminated against based on her marital status; (2) the agency action was based on 

partisan political reasons; or (3) the agency action was based (in whole or part) on preappointment reasons and the agency did not follow the procedures of 5 C.F.R. 

§ 315.805. Walker, 119 M.S.P.R. 391, ¶ 5. However, the appellant makes no such 

assertions and we therefore need not address this regulatory right to appeal.
4

¶4 On review, the appellant contends, as she did below, that she was not a 

probationary employee because: (1) her Standard Form (SF) 50 previously 

showed that she was a permanent employee, but was illegally changed; (2) she 

was told by an agency employee that she would not have to serve a probationary 

period; and (3) the job announcement for her position did not necessarily require 

a probationary period. RPFR File, Tab 1 at 3-4; see RAF, Tab 20 at 3-4. The 

appellant also argues that the probationary period should be waived because she 

has prior state government service. RPFR File, Tab 1 at 3.

¶5 First, regarding the appellant’s argument concerning her SF-50, an 

employee’s SF–50, although the customary document used to memorialize a 

personnel action, is not controlling as to the nature of the employee’s 

appointment. Scott v. Department of the Air Force, 113 M.S.P.R. 434, ¶ 8 (2010). 

Rather, the Board looks to the totality of the circumstances in determining the 

nature of the appointment. Id. The appellant argues that one of the copies of her 

SF-50 stated that her tenure group was “permanent.” RPFR File, Tab 1 at 3. The 

SF-50’s submitted by the agency, including the appointment SF-50, RAF, Tab 6 

at 10, and the corrected general adjustment SF-50, id. at 11, reflect that the 

appellant’s tenure group was “conditional.” The appointment SF-50 also reflects

that the appellant had no prior federal civilian service. Id. at 10. Accordingly, 

based upon the totality of the circumstances, and regardless of any apparent 

mistaken SF-50, we find that the appellant was a probationer.

¶6 Next, the appellant again argues that she should not be required to serve a 

probationary period both because the job announcement for her position stated 

that the position “may” require a probationary period and because an agency 

employee told her that her position did not require a probationary period. We 

agree with the administrative judge that these arguments are not persuasive. RID 

at 6-7; see, e.g., RPFR File, Tab 1 at 3-4. Where a probationary period is 

required, it cannot be waived by the parties. Cunningham v. Department of the 

Army, 119 M.S.P.R. 147, ¶ 5 (2013). Therefore, regardless of the appellant’s 
5

interpretation of the job announcement or the alleged statement of an agency 

employee, the appellant was required to serve a probationary period. 

See 5 C.F.R. § 315.801(e).

¶7 Lastly, the appellant asserts that the probationary period should be waived 

because of her prior state government service. RPFR File, Tab 1 at 3. However, 

there is nothing in the law that allows for waiver of the probationary period based 

upon nonfederal service. The Board therefore lacks jurisdiction over the 

appellant’s termination appeal.

The administrative judge properly denied corrective action under USERRA.

¶8 In order to prevail on the merits in a USERRA claim, there must be an 

initial showing by the employee, by preponderant evidence, that the employee’s 

military status was at least a motivating or substantial factor in the agency action. 

Strausbaugh v. Government Printing Office, 117 M.S.P.R. 566, ¶ 11, aff’d, 493 F. 

App’x 61 (Fed. Cir. 2012). Here, the appellant asserts that a coworker stated that 

management officials believed they were forced to hire combat veterans, planned 

on getting rid of these individuals as quickly as possible, and believed that 

combat veterans were “damaged goods.” RPFR File, Tab 1 at 5; see RAF, Tab 5 

at 3, Tab 12 at 3-4, Tab 20 at 4. We agree with the administrative judge that 

these allegations alone do not meet the appellant’s burden of proof concerning her 

USERRA claim, and we therefore find that the administrative judge properly 

denied corrective action under USERRA. Strausbaugh, 117 M.S.P.R. 566, 

¶¶ 12-13 (finding that the appellant presented no evidence that his military 

service was a motivating factor in his termination).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:
6

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
7

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board