NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3264 

CLARA A. ALVAREZ, 

Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

Respondent. 

Clara A. Alvarez, of Freedom, Maine, pro se. 

Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, 

Director, and Patricia M. McCarthy, Assistant Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2008-3264 

CLARA A. ALVAREZ, 

Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

Respondent. 

Petition for review of the Merit Systems Protection Board in PH0731070553-I-1 

and PH315H070436-I-1. 

___________________________ 

DECIDED: November 6, 2008 

___________________________ 

Before BRYSON and DYK, Circuit Judges, and PATEL, District Judge.

*

PER CURIAM. 

 DECISION 

Clara A. Alvarez petitions for review of a decision of the Merit Systems Protection 

Board dismissing her appeal from her removal from employment with the Department of 

the Treasury. We affirm. 

 

∗ The Honorable Marilyn Hall Patel, District Judge, United States District Court for 

the Northern District of California, sitting by designation. 
BACKGROUND 

Ms. Alvarez was hired on May 30, 2006, to the position of Revenue Officer with 

the Internal Revenue Service (“IRS”). Her appointment was subject to the completion of 

a one-year probationary period with the agency and a limited background investigation. 

The background investigation revealed, among other things, that prior to her 

employment with the agency, while she was working for the State of Maine as a Tax 

Examiner, Ms. Alvarez had been suspended from duty for inappropriately accessing 

state and federal tax information. Following the background investigation, Ms. Alvarez 

was notified, on May 7, 2007, that she would be terminated during her probationary 

period for “conduct unbecoming or not suitable for IRS employment.” She was advised 

that she had seven calendar days from receipt to provide a written reply to the letter. 

She received a copy of the background investigation report on May 10, 2007, and 

submitted a timely written reply to the agency’s letter on May 14, 2007. On May 22, 

2007, Ms. Alvarez’s employment with the agency was terminated, effective May 24, 

2007. 

Ms. Alvarez filed two appeals with the Merit Systems Protection Board 

challenging the agency’s decision to terminate her employment. The appeals were 

consolidated and the administrative judge assigned to the case conducted a hearing. 

Following the hearing, the administrative judge dismissed the appeals on the ground 

that the Board lacked jurisdiction over Ms. Alvarez’s termination. The administrative 

judge rejected Ms. Alvarez’s assertion that the Board could assert jurisdiction on the 

ground that she had been terminated based on an unsuitability determination pursuant 

to 5 C.F.R. § 731 (2007). Instead, the administrative judge concluded that Ms. Alvarez 

2008-3264 2 
had been terminated under 5 C.F.R. § 315 (2007) for conduct based in whole or in part 

on conditions arising before her appointment. The administrative judge then considered 

whether Ms. Alvarez had been afforded the procedural safeguards of 5 C.F.R. § 

315.805 (2007), which are applicable to probationary employees who are terminated for 

conduct based in part on pre-appointment conditions. Finding that Ms. Alvarez had 

been granted her procedural rights, the administrative judge dismissed the appeals. 

After the full Board denied Ms. Alvarez’s petition for review, she petitioned for review by 

this court. 

DISCUSSION 

When a competitive service employee is terminated during a probationary period, 

the employee enjoys no statutory right of appeal to the Merit Systems Protection Board. 

See 5 U.S.C. §§ 4303(f)(2), 7511(a)(1)(A)(i). Although probationary employees have a 

right to appeal pursuant to OPM regulation, that right is available in only a few 

circumstances. See 5 C.F.R. § 315.806 (2007). One of those circumstances is when a 

probationary employee claims that the termination was based in whole or in part on 

conditions arising before appointment. In such a case, the employee’s appeal is limited 

to whether the termination was effected in accordance with the procedural requirements 

of 5 C.F.R. § 315.805 (2007). See id. § 315.806(c) (2007). 

With respect to the issue raised in her first appeal, Ms. Alvarez argues that she 

was not afforded the protections of section 315.805 of the OPM regulations when she 

was removed from employment during her probationary period. Section 315.805 

provides that a probationary employee who is subject to termination based in whole or 

in part on conditions arising before his or her appointment is entitled to (1) “an advance 

2008-3264 3 
written notice stating the reasons, specifically and in detail, for the proposed action,” (2) 

“a reasonable time for filing a written answer to the notice of proposed adverse action 

and for furnishing affidavits in support of [that] answer,” and (3) notice of any adverse 

decision and the employee’s appeal rights. 

The administrative judge found that Ms. Alvarez was given advance written 

notice of the proposed termination on May 7, 2007, and was given seven days within 

which to respond. Although the regulations do not define “reasonable time,” the 

administrative judge looked to the amount of time a non-probationary employee is given 

to answer the agency’s charges. Under 5 U.S.C. § 7513(b)(2), such an employee is 

entitled to “a reasonable time, but not less than 7 days” within which to respond. 

Because Ms. Alvarez was allowed seven days to respond to the notice of proposed 

adverse action, the administrative judge concluded that the amount of time given to Ms. 

Alvarez was reasonable. 

While Ms. Alvarez was given seven days to respond to the termination notice, the 

record reflects that she did not receive a copy of the background investigation report 

detailing the allegations against her until May 10, 2007. Thus, she had only four days 

from the receipt of the report to file her written answer. Although the administrative 

judge did not address the adequacy of a four-day notice period, he found that even if 

the agency should have granted Ms. Alvarez’s request for additional time to respond, 

she failed to show that any error in that regard was prejudicial. In light of the highly 

factual nature of those determinations and the administrative judge’s detailed analysis 

of the prejudice issue, we uphold the administrative judge’s ruling. 

2008-3264 4 
In particular, the administrative judge found that even if Ms. Alvarez should have 

been given more time for her response, the error was harmless in light of the fact that 

Ms. Alvarez filed a thorough response to the notice within the allotted time and failed to 

show that the short response time prejudiced her. Ms. Alvarez testified before the 

administrative judge that if she had had more time she would have responded to 

derogatory allegations made by a former supervisor and would have provided 

statements from co-workers at her former job. The administrative judge noted, 

however, that she did respond to the derogatory allegations by providing copies of 

performance appraisals she received from her former supervisor and found that Ms. 

Alvarez had not shown that her co-workers’ statements would likely have led the agency 

to reach a different conclusion. Because Ms. Alvarez has not made a persuasive 

showing that the administrative judge erred in reaching those conclusions as to the 

questions of procedural error and the absence of prejudice, we sustain the Board’s 

ruling on the procedural protection issue.1 

With respect to her second appeal, Ms. Alvarez argues that the agency did not 

terminate her employment under the authority of section 315.805 of the OPM 

regulations, but instead acted pursuant to an adverse suitability determination under 

part 731 of the OPM regulations. Because an employee in the competitive service who 

is terminated as a result of being found unsuitable for employment in a suitability 

determination may appeal that determination to the Board, see 5 C.F.R. § 731.501 

 

1

 Although the administrative judge dismissed the appeal relating to the asserted 

procedural error, we believe the Board’s order should have affirmed, rather than 

dismissed, the appeal, as the Board had jurisdiction under 5 C.F.R. § 315.806 (2007) to 

address the asserted procedural error; the Board’s ruling against Ms. Alvarez was 

based on its determination that she was not entitled to relief on the merits of that claim. 

2008-3264 5 
(2007), Ms. Alvarez contends that the Board had jurisdiction over her appeal on that 

ground. 

Ms. Alvarez does not dispute the agency’s authority to terminate probationary 

employees for conditions arising before appointment. The OPM regulations make clear 

that a suitability determination under part 731 is distinct from an agency action under 

part 315, and part 731 specifically provides that “[w]here behavior covered by this part 

may also form the basis for a part 752 [adverse actions for non-probationary 

employees] or 315 action, agencies may use part 315 or 752, as appropriate, instead of 

this part.” 5 C.F.R. § 731.203(d) (2007). Ms. Alvarez argues that the agency conducted 

what she terms a “constructive suitability determination.” Contrary to Ms. Alvarez’s 

argument, the administrative judge found that the IRS had terminated Ms. Alvarez’s 

employment under the authority of section 315.805 of the OPM regulations for 

conditions arising before appointment, and that the agency did not conduct a 

“constructive” suitability determination. 

Ms. Alvarez bolsters her argument that the agency’s action was a constructive 

suitability determination by pointing to a provision of the Internal Revenue Manual that 

states “an investigation that yields adverse or derogatory information about an applicant 

or an employee requires a suitability determination.” Internal Revenue Manual 

§ 6.731.1.5. She suggests that the Manual provision required that the agency conduct 

a suitability determination in her case and thus supports her contention that the agency 

did just that. 

We do not find the Manual provision persuasive on this issue. The provision in 

question is located in a portion of the Manual that deals specifically with suitability 

2008-3264 6 
determinations; it indicates that if an investigation yields adverse information about an 

employee or applicant, a suitability determination should be conducted. The provision 

does not, however, have the effect of depriving the agency of its authority under the 

OPM regulations to terminate probationary employees for conditions arising prior to 

employment, and there is no indication that it was intended to narrow the agency’s 

options in such cases. 

To determine whether the agency’s action in this case was a suitability 

determination, the administrative judge weighed the evidence on both sides. In favor of 

Ms. Alvarez’s argument, the administrative judge recognized that the form authorizing 

her background investigation referred to “Part 731,” and that her termination notice used 

the words “not suitable.” The administrative judge acknowledged that those references 

“could be deemed to implicate” section 731. On the other hand, the administrative 

judge noted that “[a]ll of the agency officials who testified stated that the decision to 

terminate the appellant was not a suitability determination,” and that a supervisor 

testified that “her decision to terminate the appellant was primarily based on the 

appellant’s prior conduct during her employment with the State of Maine.” The 

administrative judge also relied on the language of the actual request that Ms. Alvarez 

be terminated and the proposed termination notice itself. The request that she be 

terminated referred to “ERG 315.804,” and the notice stated, “[t]his is a notice of 

proposed termination issued in accordance with Part 315.805 of the Office of Personnel 

Management regulations.” On balance, the administrative judge decided that the 

evidence established that the agency terminated Ms. Alvarez under 5 C.F.R. § 315 and 

thus that the Board lacked jurisdiction to review the agency’s decision as a suitability 

2008-3264 7 
2008-3264 8 

determination. We uphold that finding as supported by substantial evidence and 

therefore sustain the Board’s ruling dismissing Ms. Alvarez’s “suitability determination” 

appeal.