UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JEFFERY B. BENOIT,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DC-3443-21-0386-I-1

DATE: April 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jeffery B. Benoit, Providence Forge, Virginia, pro se.

Megan Garry, Esquire, Fort Lee, Virginia, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Levitt, Member

FINAL ORDER

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

which dismissed his 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 based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. Except as expressly 

MODIFIED to vacate the administrative judge’s factual findings and clarify that 

the appellant has not made a nonfrivolous allegation that he was subjected to 

an appealable adverse action, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant was briefly employed as a program analyst at a U.S. Army 

installation at Fort Lee, Virginia. Initial Appeal File (IAF), Tab 1 at 1, 7-8. 

The appellant’s characterization of his employment differs from his Standard 

Form 50 (SF-50) and the evidence put forward by the agency. The SF-50 that 

he submitted into the record reflects that, effective February 16, 2021, 

the appellant received a provisional appointment, not to exceed (NTE) 

April 17, 2021. Id. at 7-8. However, in filing the present appeal, the appellant 

argued that he had been, “[T]erminated from [P]ermanent [P]osition” on 

April 17, 2021. Id. at 3. In his initial appeal form, the appellant checked the 

boxes indicating that he was a permanent Federal employee in the competitive 

service, and that he was not “serving a probationary, trial, or initial service period 

at the time of the action” he was appealing. Id. at 1. He identified the length of 

his government service as 2 months. Id.

¶3 The appellant maintained he was “hired by name based on qualifications” 

with veterans’ preference and that the job posting for the program analyst 
3

position stated that it was a permanent position. Id. at 5, 10. He submitted copies 

of a tentative offer letter dated January 19, 2021, and official offer letter dated 

January 26, 2021, both of which stated that the position was permanent. 

Id. at 11-14. The appellant stated that, during a meeting on April 8, 2021, 

his supervisor told him that it was his last day of work and that he would be paid 

until April 17, 2021. Id. at 5. He stated that, after he realized that the supervisor 

had not given him anything in writing regarding the termination, he contacted 

his supervisor asking for a termination letter. Id. The supervisor purportedly

stated that he had contacted Human Resources (HR) about drafting a termination 

letter. Id. The appellant maintained that it was his “belief that this is when 

[his SF-50] was altered to reflect Provisional Status and dates. ” Id. He submitted 

an undated termination letter into the record that stated, “Your provision 

appointment was set to expire on 17 April. Management has elected to not 

convert this appointment to permanent.” Id. at 15.

¶4 In its narrative response, the agency argued that the Board lacked 

jurisdiction over the appeal. IAF, Tab 6 at 4-7. It asserted that the appellant had 

received a “by-name (noncompetitive) provisional (temporary) appointment”

pursuant to an appointment authority permitting temporary appointments 

of qualified veterans, and that the appointment had expired April 17, 2021. 

Id. at 4-5. It argued that the termination of the appellant’s appointment on the 

expiration date was not an appealable adverse action. Id. at 5, 22. The agency 

argued that the appellant’s assertion that it altered his SF-50 was conclusory and 

contradicted by the evidence. Id. at 7. In a sworn declaration, an HR specialist 

set forth the circumstances of the agency’s offer of a provisional appointment to 

the appellant, after he informed her that he had left his previous position in 

Kuwait in order to accompany his spouse to Fort Lee and provided documents 

demonstrating that he qualified for the hiring authority. Id. at 17. The agency 

also submitted a sworn declaration from an HR specialist who stated that she had 

made an error in the appellant’s offer letter by omitting the information that it 
4

was a temporary appointment with a not-to-exceed date but also attested that 

she had verbally informed the appellant about the nature of his provisional 

appointment. Id. at 20. Finally, the agency submitted an SF-50 from the 

appellant’s prior position at a U.S. Army installation in Kuwait, reflecting 

a provisional appointment with a not-to-exceed date and argued that this 

prior employment demonstrated that the appellant was aware of the nature of 

a temporary appointment. Id. at 40.

¶5 Subsequently, the administrative judge issued an order to show cause,

noting that the agency had submitted evidence into the record indicating that the 

appellant held a provisional or temporary appointment that lapsed according to its 

expiration date, and therefore the Board lacked jurisdiction. IAF, Tab 7 at 3. 

She ordered the appellant to submit evidence and argument demonstrating that the 

appeal should not be dismissed for lack of jurisdiction. Id. at 3-4. 

¶6 In response, the appellant argued that none of the documents he had 

received pertaining to the program analyst position, including the offer letters, 

stated that the position was a provisional appointment with a not-to-exceed date. 

IAF, Tab 8 at 4-5. He stated further that he had identified himself as a permanent 

employee at a new employee orientation and no one corrected him. Id. at 6. 

The appellant maintained that he was unable to access his SF-50 and had 

contacted an HR professional about this issue. Id. at 6-7. He asserted that, 

“[f]rom the date [he] was hired on February 16, 2021, through the date that 

[he] was fired April 8, 2021, there was never any mention that [he] was a 

provisional employee” by his supervisor or any HR professional. Id. at 7. 

The appellant stated that his previous position at a U.S. Army installation in 

Kuwait was a “permanent position with a one-year duration [sic].” Id. at 7. 

Finally, the appellant argued that because the job posting and offer letters did not 

explain that the appointment was provisional, the agency “must accept 

responsibility for their actions,” and he opined that the agency had engaged in a 

“fabrication of the facts to shield the agency from an action.” Id. at 8.
5

¶7 Without holding the requested hearing, the administrative judge issued 

an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 9, 

Initial Decision (ID) at 1, 7. The administrative judge found that the appellant 

had received a temporary appointment that had expired on its not-to-exceed date 

and that the expiration of a temporary appointment is not an action appealable to 

the Board. ID at 4-5. She also found that, even if the appellant’s appointment 

was not provisional, the record showed that he would not meet the definition of 

an employee with chapter 75 appeal rights. ID at 6.

¶8 The appellant has filed a petition for review, arguing that he was “denied 

[his] procedural due process rights.” Petition for Review (PFR) File, Tab 1 at 18. 

He repeats his arguments that he held a permanent position because none of the 

documents related to his hiring identified a provisional appointment and the 

agency altered his SF-50. Id. at 18-21. The appellant submits evidence 

concerning the jurisdictional issue, some of which was already in the record. 

Id. at 4-15. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 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 existence of Board 

jurisdiction is a threshold issue in adjudicating an appeal, and the appellant bears 

the burden of establishing jurisdiction by preponderant evidence. Scott v. 

Department of the Air Force, 113 M.S.P.R. 434, ¶ 5 (2010); 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing if 

he presents nonfrivolous allegations of Board jurisdiction. Ferdon v. U.S. Postal 

Service, 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has 

made a nonfrivolous allegation of jurisdiction entitling him to a hearing, 

the administrative judge may consider the agency’s documentary submissions; 

however, to the extent that the agency’s evidence constitutes mere factual 
6

contradiction of the appellant’s otherwise adequate prima facie showing of 

jurisdiction, the administrative judge may not weigh evidence and resolve 

conflicting assertions of the parties, and the agency’s evidence may not be 

dispositive. Id. 

¶10 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence 

submitted for the first time with a petition for review absent a showing that it was 

unavailable before the close of the record below despite the party’s due diligence. 

Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v. 

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board

generally will not consider a new argument raised for the first time on review 

absent a showing that it is based on new and material evidence). However, 

we have considered the appellant’s new evidence and argument to the extent it 

concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can 

be raised at any time including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5 

(considering evidence submitted for the first time on review because it was 

relevant to the Board’s jurisdiction). 

¶11 Here, the administrative judge arguably improperly weighed the evidence in 

finding that the appellant held a temporary appointment and did not meet the 

definition of an employee for the purposes of chapter 75 appeal rights, and we 

vacate those findings. ID at 5-7; see Ferdon, 60 M.S.P.R. at 329. Rather the 

administrative judge should have assessed whether the appellant had made 

nonfrivolous allegations that he suffered an appealable adverse action. 

¶12 It is well established that the expiration of a temporary appointment is not 

an adverse action appealable to the Board. See Scott, 113 M.S.P.R. 434, ¶ 9; 

Endermuhle v. Department of the Treasury, 89 M.S.P.R. 495, ¶ 9 (2001); 5 C.F.R. 

§ 752.401(b)(11) (excluding the termination of an appointment on the expiration 

date specified as a basic condition of employment at the time the appointment 

was made from the adverse actions covered under chapter 75). The Board looks 

to the totality of the circumstances to determine the nature of an employee’s 
7

appointment; an employee’s SF-50, although the customary document used to 

memorialize a personnel action, is not controlling. Scott, 113 M.S.P.R. 434, ¶ 8. 

Here, the appointment SF-50, authorized on February 3, 2021, with an effective 

date of February 16, 2021, stated that the appellant received a provisional 

appointment with a not-to-exceed date of April 17, 2021. IAF, Tab 1 at 16. The 

SF-50 states that the appointment was made pursuant to 5 C.F.R. § 316.402(b)(4), 

which authorizes temporary noncompetitive appointments of veterans with a 

service‐connected disability of 30 percent or more, for which the appellant 

qualified as indicated by his veterans’ preference code. Id. Finally, the SF-50 

explicitly states that the appointment is on a provisional basis. Id. As noted by 

the administrative judge, the agency has admitted that the initial and final offer 

letters it sent to the appellant incorrectly stated that it was a permanent position. 

ID at 5; IAF, Tab 1 at 11-14, Tab 6 at 20.

¶13 The essence of the appellant’s arguments on appeal and on review is that 

he detrimentally relied on documents from the agency, notably the offer letters 

and vacancy announcement, and therefore, he should be treated as if he was 

an employee in a permanent competitive-service position for purposes of Board 

appeal rights. IAF, Tab 1 at 5, Tab 8 at 6-8; PFR File, Tab 1 at 18-26. He states 

that the agency’s HR errors created a “legally binding contract” and that the 

provisional nature of the position was not part of the contract because it was “not 

presented in the job announcement.” PFR File, Tab 1 at 18. The appellant 

challenges the accuracy of the sworn declarations from the agency HR 

professionals attesting that they had informed him of the nature of his provisional 

appointment and repeats his bare assertion that the agency added the provisional 

appointment with a not-to-exceed date to his SF-50 only after he demanded 

a termination letter from his supervisor. Id. at 19-20; IAF, Tab 6 at 17, 20. 

He submits for the first time on review April 2021 email correspondence, in 

which a union representative requests information regarding the nature of the 

appellant’s employment and relays the appellant’s understanding that he was 
8

a permanent employee due to the language in his job offer and the vacancy 

announcement. PFR File, Tab 1 at 4-5. He also submits a document defining 

various blocks and codes in SF-50 records and a copy of the appointment and 

termination SF-50s that the agency had previously submitted into the record. 

Id. at 8-15.

¶14 Reviewing the totality of the circumstances regarding the allegations set 

forth by the appellant and the documents he submits into the record, we find that 

he has not raised a nonfrivolous allegation that the provisional appointment set 

forth in his SF-50 was incorrect and that he was subjected to an appealable 

adverse action. See Scott, 113 M.S.P.R. 434, ¶ 8. The appellant’s bare, 

conclusory statement that the agency altered his SF-50 to add a provisional 

appointment only after he was terminated by his supervisor does not constitute 

a nonfrivolous allegation that he had received a permanent competitive-service 

appointment. IAF, Tab 1 at 5; PFR, Tab 1 at 19; see 5 C.F.R. § 1201.4(s). 

He offers no support for this allegation and notably does not allege the existence 

of a previous SF-50 or other appointment documentation that the HR 

professionals were alleged to have altered. Although the appellant focuses on the 

vacancy announcement that identified the position as permanent, by his own 

acknowledgement, he did not apply for the vacancy announcement but instead 

received a by-name direct offer from an agency HR professional after 

he explained his prior position at another U.S. Army installation and presented 

his qualifications. PFR File, Tab 1 at 19; IAF, Tab 1 at 5, 10, Tab 8 at 5-6.

¶15 None of the equitable considerations raised by the appellant relieve him of

his burden of proof regarding jurisdiction. The appellant’s argument that the 

agency’s errors created a binding legal contract granting him a permanent 

position and entitling him to due process rights is not a basis for finding Board 

jurisdiction. PFR File, Tab 1 at 18-19. The Board has held in other 

circumstances that an agency’s error cannot confer jurisdiction on the Board to 

hear the merits of an appeal. See, e.g., LaBoube v. Department of the Treasury, 
9

105 M.S.P.R. 337, ¶8 (2007) (finding that the agency’s failure to provide accurate 

information at the time of appointment about the requirement to serve a trial 

period is no basis for waiving the requirement); Phillips v. Department of 

Housing and Urban Development, 44 M.S.P.R. 48, 52 (1990) (finding that 

an agency’s failure to inform an employee that she was required to serve a 

probationary period until 11 months after she was appointed did not alter the 

requirements that she complete a one-year probationary period that began on the 

effective date of her appointment). 

¶16 The appellant also repeats his argument on review that the agency failed to 

comply with 5 C.F.R. § 316.403(a)(3) because the offer letters did not identify the 

provisional appointment. PFR File, Tab 1 at 20; IAF, Tab 8 at 26. Under 

5 C.F.R. § 316.403(a)(3), an agency designating an appointment as provisional 

must state its intention to convert an appointment to a nontemporary appointment 

under appropriate authority before the expiration of the temporary appointment, 

must state this intention in any written offer of employment, and document this 

intention as part of the permanent record of the initial appointment. Here, 

although the agency included the provisional nature of the appointment in the 

SF-50, the record supports the appellant’s allegation that it did not include the 

necessary information in the offer letters. IAF, Tab 1 at 8-14, 16-17. However, 

as noted by the administrative judge, the agency’s errors cannot confer Board 

jurisdiction and do not demonstrate that the personnel action at issue was not the 

expiration of a temporary appointment outside the scope of the Board’s 

jurisdiction. ID at 5. The Board’s jurisdiction is established by statute or 

regulation and cannot be waived by the Board for equitable considerations. 

See Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 13-14 (1996).

¶17 Because the appellant has not raised nonfrivolous allegations that he was 

subjected to a removal instead of the expiration of a temporary appointment, it is 

irrelevant whether he met the statutory definition of an employee under chapter 

75. Scott, 113 M.S.P.R. 434, ¶ 9; Endermuhle, 89 M.S.P.R. 495, ¶ 9. Therefore, 
10

he is not entitled to a jurisdictional hearing, and the administrative judge properly 

dismissed the appeal for lack of jurisdiction. See Ferdon, 60 M.S.P.R. at 329.

NOTICE OF APPEAL RIGHTS2

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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 c ase, 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). 

 

2

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.
11

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 

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. ____ , 137 S. Ct. 1975 (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 
12

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, 

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 
13

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.3 The court of appeals must receive your petition 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 we bsite at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

3

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, 

132 Stat. 1510. 
14

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

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:

Washington, D.C.

/s/ for 

Jennifer Everling

Acting Clerk of the Board