UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ESTON D. SPAIN, JR.,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

PH-315H-17-0448-I-1

DATE: June 9, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Eston D. Spain, Jr., Camden, New Jersey, pro se.

Andrew J. Hass, 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dismissed his appeal as withdrawn. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

BACKGROUND

¶2 On November 27, 2016, the agency appointed the appellant to the 

competitive-service position of Emergency Management Specialist (Geospatial) 

with the agency’s Federal Emergency Management Agency (FEMA), Region III, 

subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 5 at 74.2 

On August 15, 2017, the agency issued a notification to the appellant that it was 

terminating him during his probationary period for unacceptable performance and 

absence without official leave, effective August 22, 2017. Id. at 15-20, 72. The 

appellant timely filed an initial appeal of the termination. IAF, Tab 1. The 

administrative judge notified the appellant of the elements and burdens of proof 

to establish Board jurisdiction over a probationary termination and ordered him to 

file evidence and argument establishing a nonfrivolous allegation of jurisdiction. 

IAF, Tab 2 at 2-5. The agency filed a response to the order in which it asserted

that the Board lacked jurisdiction over the termination. IAF, Tab 6. The 

 

2

Specifically, the agency converted the appellant’s prior temporary appointment in the 

excepted service as a Geospatial Information System Specialist to a career-conditional 

appointment. IAF, Tab 5 at 74, 82.
3

appellant did not file a response; rather, he filed a request to withdraw his appeal 

because he was not asserting discrimination on the basis of partisan political 

reasons or marital status and he did not have the resources to prepare a response 

while he was incarcerated. IAF, Tab 9. The administrative judge subsequently 

issued an initial decision finding that the appellant’s withdrawal of his appeal was 

clear, decisive, and unequivocal, and dismissed the appeal as withdrawn. IAF, 

Tab 10, Initial Decision (ID). 

¶3 The appellant has timely filed a petition for review requesting that the 

Board permit him to rescind his request to withdraw his appeal. Petition for 

Review (PFR) File, Tab 1. The agency has filed an opposition to the petition for 

review. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 On review, the appellant asserts that he wishes to proceed with his appeal 

because of recently discovered evidence. PFR File, Tab 1 at 1. Specifically, he 

alleges that he has learned of e-mail and other correspondence between the 

district attorney’s office in the locale in which he is incarcerated and the regional 

administrator’s office in FEMA Region III regarding his incarceration, 

transmitted on or before July 14, 2017. Id. He requests review of this 

correspondence to ensure that “no impropriety” occurred in his termination and to 

explain the termination letter’s reference to his behavior. Id. at 3; IAF, Tab 5 

at 18. 

¶5 When an appellant directly petitions the full Board for review of an initial 

decision dismissing an appeal as withdrawn, the Board will treat the petition as a 

request to reopen his appeal. Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486,

¶¶ 9-13 (2010). Ordinarily, an appellant’s withdrawal of an appeal is an act of 

finality that removes the appeal from the Board’s jurisdiction. Id., ¶ 7. A

voluntary withdrawal must be clear, decisive, and unequivocal. Id. The

administrative judge found, and the appellant does not dispute, that the 
4

appellant’s withdrawal of his appeal was clear, decisive, and unequivocal. ID

at 2. 

¶6 Absent unusual circumstances, such as misinformation or new and material 

evidence, the Board will not reinstate an appeal once it has been withdrawn. 

Lincoln, 113 M.S.P.R. 486, ¶ 9. However, the Board may relieve an appellant of 

the consequences of his decision to withdraw an appeal when the decision was 

based on misleading or incorrect information provided by the Board or the 

agency. Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 7 (2011). 

The appellant has not alleged, nor do we find, that that he relied upon misleading 

or incorrect information provided by the Board or the agency in deciding to 

withdraw his appeal. Cf. id., ¶¶ 10-15 (excusing the appellant from the 

consequences of his decision to withdraw his appeal based on misinformation 

provided by the administrative judge regarding the scope of applicable Board 

remedies).

¶7 We find not persuasive the appellant’s argument that the correspondence in 

question constitutes new evidence. The appellant asserts that he recently learned 

of the correspondence but acknowledges that he has not seen it and does not 

identify when or how he learned of it. PFR File, Tab 1 at 1. He acknowledged in 

his initial appeal that, upon his incarceration, his computer, badge, and mobile 

phone were transmitted from the police to FEMA Region III on July 11, 2017, 

3 days before the allegedly new correspondence, and that his wife had notified his 

supervisor about his upcoming hearing and anticipated release from incarceration. 

IAF, Tab 1 at 27. The appellant evidently was aware before his request to 

withdraw his appeal of communication to the agency regarding his incarceration 

and has not articulated how the additional correspondence he has discovered adds 

new evidence to the instant appeal. Thus, we cannot conclude that the appellant 

has shown that the information contained in the additional correspondence was 

unavailable, despite his due diligence, at the time he requested to withdraw his 

appeal. See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 
5

(1989) (holding that, to constitute new evidence, the information contained in the 

documents, not just the documents themselves, must have been unavailable 

despite due diligence when the record closed); 5 C.F.R. § 1201.115(d). 

¶8 Moreover, the appellant’s assertion that the correspondence could r eveal 

some impropriety in his termination is insufficient to show that the 

correspondence is material either to the preliminary question of the Board’s 

jurisdiction over his probationary termination or to the merits of the appeal. 

Evidence is material to a proceeding only when it is of sufficient weight to 

warrant a different outcome. Freeman v. Department of the Navy, 88 M.S.P.R. 

659, ¶ 12 (2001), aff’d, 28 F. App’x 956 (Fed. Cir. 2002). A probationary 

employee in the competitive service who has not completed 1 year of current 

continuous service, such as the appellant, has no statutory right of appeal to the 

Board. 5 U.S.C. § 7511(a)(1)(A); Niemi v. Department of the Interior, 

114 M.S.P.R. 143, ¶ 9 (2010). However, a probationary employee in the 

competitive service may appeal a termination if he alleges that it was based on 

partisan political reasons or marital status, or that his termination for 

preappointment conditions was procedurally deficient. Hurston v. Department of 

the Army, 113 M.S.P.R. 34, ¶ 8 (2010); 5 C.F.R. § 315.806(a)-(c). Alternatively, 

an individual, such as the appellant, can show that he qualifies as a 

competitive-service “employee” with 5 U.S.C. chapter 75 appeal rights by 

showing that he either was not serving a probationary period at the time of 

termination or he had completed 1 year of current continuous service under an 

appointment other than a temporary one limited to 1 year or less. 5 U.S.C. 

§ 7511(a)(1)(A); Hurston, 113 M.S.P.R. 34, ¶ 9. 

¶9 The appellant admitted that his termination was not based on partisan 

political reasons or marital status and has not alleged that he was terminated for 

preappointment reasons. IAF, Tab 9 at 1. Further, he has not articulated how the 

correspondence in question might show that he qualified as an “employee” with 

appeal rights under 5 U.S.C. chapter 75 at time of his termination. Even if he 
6

were to establish the Board’s jurisdiction over his appeal, in the limited 

circumstances that the Board would reach the merits of the termination, the 

appellant has not shown that the correspondence is of sufficient weight to warrant 

reversal of the termination.3 Accordingly, we find that the appellant has not 

established any basis for reinstating his appeal, and we affirm the initial decision. 

NOTICE OF APPEAL RIGHTS4

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 

 

3

If an appellant establishes Board jurisdiction by proving that the agency based a 

probationary termination on marital status or partisan political reasons, only then does 

the Board proceed to the merits of the case. Burton v. Department of the Air Force, 

118 M.S.P.R. 210, ¶¶ 8-11 (2012); 5 C.F.R. § 315.806(b). In the event that an appellant 

establishes jurisdiction over a termination for preappointment rea sons, the Board does 

not reach the merits of the agency’s decision; rather, the Board’s jurisdiction is limited 

to whether the agency failed to afford the appellant the procedural protections of 

5 C.F.R. § 315.805, and, if so, whether the procedural error was harmful, such that the 

action must be set aside. West v. Department of Health & Human Services, 

122 M.S.P.R. 434, ¶ 7 (2015). Finally, if an appellant establishes jurisdiction by 

showing that he is an “employee” under 5 U.S.C. § 7511(a)(1), the Board will not reach 

the merits of the termination unless the agency’s procedures for effecting the 

termination afforded the appellant minimum due process of law, including prior notice 

and an opportunity to respond. See Gadsden v. Department of State, 102 M.S.P.R. 79, 

¶¶ 16-17 (2006) (reversing the agency’s removal action when the appellant established 

that he met the definition of an “employee” with Board appeal rights, but the agency 

failed to provide him minimum due process of law under Cleveland Board of Education 

v. Loudermill, 470 U.S. 532 (1985)). 

4

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

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: 

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 particula r 

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. 
8

(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 

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: 
9

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 

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. 5 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). 

 

5

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

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. 

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