UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM TYRONE CUNNINGHAM,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

DC-315H-17-0167-I-1

DATE: July 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Tyrone Cunningham, Fort Washington, Maryland, pro se.

Elizabeth L. Beason and Katrina Liu, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed his appeal of his probationary termination 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; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 In his petition for review, the appellant argues that he thought he was being 

reinstated and, per his rights as a former Postal Service employee, he was not 

required to serve a probationary period and/or the agency never told him he 

would be required to do so. Petition for Review (PFR) File, Tab 1 at 7, 11; Initial 

Appeal File (IAF), Tab 30, 33-34. As a general matter, a person who is “given a 

career or career-conditional appointment” must complete a 1-year probationary 

period. See 5 C.F.R. § 315.801(a). Here, the administrative judge correctly 

found that the appellant’s prior Federal service did not accord him the status of an 

“employee” under 5 U.S.C. § 7511(a)(1)(A). That statute provides that, to 

qualify as an “employee” with appeal rights under 5 U.S.C. chapter 75, a 

competitive-service employee must show that he either was not serving a 

probationary period or, with an exception not relevant here, had completed 1 year 

of current continuous service under an appointment other than a temporary one 

limited to a year or less. The administrative judge properly concluded that the 

appellant failed to show that his prior service could be counted toward the 

probationary period because the prior service would have to be: (1) rendered 

immediately preceding the probationary period; (2) performed in the same 
3

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); see

Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 9 (2010); see also 

Vannoy v. Department of the Air Force, 73 F.3d 380 (Fed. Cir. 1995) (per 

curiam).2

¶3 The administrative judge determined that the appellant in this case was 

employed by the U.S. Postal Service from 1993 to 2000. IAF, Tab 41, Initial 

Decision (ID) at 4; IAF, Tab 21 at 112-13. Under 5 C.F.R. § 315.802(b), though, 

such prior service could not be tacked on toward completing a probationary 

period in any agency other than in the same agency (the U.S. Postal Service). See 

Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 7 (2008). In addition, the 

administrative judge correctly found that the appellant was on notice that he was 

subject to a probationary period when he was appointed. ID at 4-5. The agency’s 

vacancy announcement clearly stated that selectees would be required to serve a 

1-year probationary term of employment if they were not already tenured Federal 

employees. IAF, Tab 21 at 99. The administrative judge also properly found 

that, even if the agency failed to notify the appellant that, if selected, he would 

need to serve a probationary term of employment, that alleged failure would still 

not confer appeal rights on the appellant. ID at 5 (citing Cunningham v. 

Department of the Army, 119 M.S.P.R. 147, ¶ 5 (2013); cf. Williams v. Merit 

Systems Protection Board, 892 F.3d 1156, 1162-63 (Fed. Cir. 2018) (recognizing 

that an agency’s failure to advise an employee that he would lose his Board 

appeal rights if he voluntarily transferred to a different position did not create 

appeal rights), cert. denied, 139 S. Ct. 1472 (2019). Further, as to the appellant’s 

argument that he thought he was being reinstated, the Board lacks jurisdiction 

over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R. 

 

2

The Board may rely on unpublished decisions of the U.S. Court of Appeals for the 

Federal Circuit if, as here, it finds the reasoning persuasive. Vores v. Department of the 

Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
4

§ 315.401. See Hicks v. Department of the Navy, 33 M.S.P.R. 511, 512-13 (1987) 

(holding that the Board lacks jurisdiction over an agency’s alleged denial of an 

employee’s reinstatement rights).

¶4 The appellant also argues for the first time that he was terminated for 

partisan political and/or preappointment reasons. PFR File, Tab 1. The Board 

generally will not consider an argument raised for the first time in a petition for 

review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Banks v. Department of 

the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The 

appellant has not made such a sufficient showing here. The appellant also 

submits two emails and argues the documents were unavailable due to being on a 

USB drive he had given to his daughter; however, the information itself was not

new and will not be considered. PFR File, Tab 1 at 14-15; see 5 C.F.R. 

§ 1201.115(d); see also Grassell v. Department of Transportation, 40 M.S.P.R. 

554, 564 (1989) (holding that the information contained in the documents, not 

just the documents themselves, must have been unavailable despite due diligence 

when the record closed). Regardless, even if we were to consider the appellant’s 

arguments or documents on review, it would not provide the Board with 

jurisdiction. 

¶5 The appellant asserts that, because he was considering becoming a union 

shop steward, the agency discriminated against him for partisan political reasons. 

PFR File, Tab 1 at 2, 5, 8. In furtherance of this argument, he submits a narrative 

description of his interactions with the union and his supervisor and emails with 

the union regarding his core duty hours at the agency. Id. at 14-18. However, 

even if we were to consider the appellant’s argument that his termination was due 

to his affiliation with the union, it would not provide the Board with jurisdiction. 

See Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1156 (holding 

that allegations of discrimination based on union affiliation do not state a cause 

of action within the Board’s jurisdiction under 5 C.F.R. § 315.806(b)). 
5

¶6 The appellant also argues that he was terminated for a preappointment 

reason based on the agency’s failure to hire him under the vacancy announcement 

for applicants under the Veterans Employment Opportunity Act. PFR File, Tab 1 

at 5; IAF, Tab 13 at 4. However, the appellant’s arguments do not suggest that 

the agency terminated him because of the hiring appointment authority. Rather, it 

is undisputed that the appellant was terminated for attendance issues and 

misrepresentations made about his work hours as reported on his daily timesheets. 

IAF, Tabs 9-12, Tab 21 at 6, 21-92, Tabs 23-25. Therefore, we find that the 

appellant has not raised a nonfrivolous allegation that he was terminated for a 

preappointment reason. 

¶7 Finally, the appellant argues that the agency willfully obstructed his 

employment by not allowing him to change his shift, not allowing him to come 

into work early, and not giving him any verbal or written warnings before his 

termination, as required by the collective bargaining agreement. PFR File, Tab 1

at 8. However, the Board cannot review these claims as they do not relate to the 

issue of the Board’s jurisdiction over an appeal by a probationary employee. 

Mastriano, 714 F.2d at 1156. Moreover, these claims do not provide an 

independent source of Board jurisdiction absent an otherwise appealable action. 

Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that absent

an otherwise appealable action, the Board lacks jurisdiction over a claim of 

harmful error, discrimination, or other prohibited personnel practice); Burnett v. 

U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006) (making the same finding in 

Penna as to a due process claim). 

¶8 Accordingly, we find the administrative judge correctly dismissed the 

appeal for lack of jurisdiction. 
6

NOTICE OF APPEAL RIGHTS3

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 case, 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). 

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: 

 

3

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.
7

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 

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 
8

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 

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 
9

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. 4 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 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. 

 

4

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. 
10

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