NOTE: This disposition is nonprecedential.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 Ju stice, 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Syst ems 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 employm ent with the Department of the Treasury. We affirm

.

∗ The Honorable Marilyn Hall Patel, District Judge, United States District Court for the Northern District of Califor nia, 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 appoi ntment was subject to the completion of a one-year probationary period with the agency and a limited ba ckground investigation. The background investigation revealed, am ong other things, that prior to her employment with the agency, while she was wo rking 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 in vestigation 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 termi nate her employment. The appeals were consolidated and the administr ative judge assigned to the case conducted a hearing. Following the hearing, the administrative judge dismi ssed the appeals on the ground that the Board lacked jurisdiction over Ms. Alvarez’s termination. The administrative judge rejected Ms. Alvarez’s assertion that t he 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). In stead, the administrative judge concluded that Ms. Alvarez

2008-3264 2had been terminated under 5 C.F.R. § 315 (2007) fo r 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 probati onary employees who are terminated for conduct based in part on pre-appointment condi tions. Finding that Ms. Alvarez had been granted her procedural right s, the administrative j udge dismissed the appeals. After the full Board denied Ms. Al varez’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 S ystems Protection Board. See 5 U.S.C. §§ 4303(f)(2), 7511(a)(1)(A)(i). Although probationar y 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 termi nation 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 protecti ons of section 315.805 of the OPM regulations when she was removed from employm ent during her probationary per iod. 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 entitl ed to (1) “an advance

2008-3264 3written notice stating the reas ons, specifically and in detail, for the proposed action,” (2) “a reasonable time for filing a written answe r to the notice of pr oposed adverse action and for furnishing affidavits in support of [t hat] 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 regulati ons do not define “r easonable time,” the administrative judge looked to the amount of time a non-pr obationary 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 administrat ive 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 agains t her until May 10, 2007. Thus, she had only four days from the receipt of the report to file her written answer. Al though the administrative judge did not address the adequacy of a four-day notice period, he f ound 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 r egard 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 4In particular, the administrative judge f ound that even if Ms. Alvarez should have been given more time for her response, the erro r 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 forme r 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 lik ely have led the agency to reach a different conclusion. Becaus e Ms. Alvarez has not made a persuasive showing that the administrat ive judge erred in reaching t hose 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 se ction 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 comp etitive service who is terminated as a result of being found uns uitable for employment in a suitability determination may appeal that det ermination to the Board, see 5 C.F.R. § 731.501

1 Although the administr ative 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 juri sdiction under 5 C.F.R. § 315.806 (2007) to address the asserted procedural error; t he 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 Boar d 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 appoint ment. The OPM regu lations make clear that a suitability determinat ion under part 731 is distinct from an agency action under part 315, and part 731 specifically provides t hat “[w]here behavior co vered by this part may also form the basis for a part 752 [adverse actions for non-probationary employees] or 315 action, agencies may use par t 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 det ermination.” Contrary to Ms. Alvarez’s argument, the administrative judge found that the IRS had terminated Ms. Alvarez’s employment under the authorit y 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 point ing to a provision of the In ternal Revenue Manual that states “an investigation that yields adverse or derogator y information about an applicant or an employee requires a suitability det ermination.” Internal Revenue Manual § 6.731.1.5. She suggests t hat the Manual provision requi red that the agency conduct a suitability determination in her case and t hus supports her contention that the agency did just that. We do not find the Manual prov ision persuasive on this issue. The provision in question is located in a porti on of the Manual that deals s pecifically with suitability

2008-3264 6determinations; it indicates that if an invest igation yields adverse information about an employee or applicant, a suit ability determination should be conducted. The provision does not, however, have the effect of depr iving the agency of it s authority under the OPM regulations to terminate probationary em ployees for conditions arising prior to employment, and there is no indication t hat it was intended to narrow the agency’s options in such cases. To determine whether the agency’s acti on in this case was a suitability determination, the administrat ive 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 “Par t 731,” and that her termination notice used the words “not suitable.” The administrativ e 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 terminat e the appellant was primarily based on the appellant’s prior conduct during her employ ment 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, t he administrative judge decided that the evidence established that the agency terminat ed 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 72008-3264 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.