UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CHRISTOPHER LEE FREDETTE,

Appellant,

v. 

DEPARTMENT OF HOMELAND 

SECURITY,

Agency. 

DOCKET NUMBER

PH-315H-15-0136-I-1

DATE: September 14, 2015

THIS ORDER IS NONPRECEDENTIAL1

Andy Langevin, Essex Junction, Vermont, for the appellant. 

Laura J. Carroll, Saint Albans, Vermont, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his probationary termination appeal for lack of jurisdiction. For the 

reasons set forth below, we GRANT the petition for review, REVERSE the initial 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision, and REMAND the appeal to the regional office for further adjudication 

in accordance with this Order. 

BACKGROUND

¶2 On May 18, 2014, the agency appointed the appellant to a GS-7 Operations 

Support Assistant position in the competitive service, subject to completion of a 

1–year probationary period. Initial Appeal File (IAF), Tab 4 at 11-12. At the 

time of his appointment, the appellant did not have prior creditable Federal 

service. See id. at 11 (reflecting a service computation date of May 18, 2014). 

On December 2, 2014, while the appellant still was serving his probationary 

period, the agency notified him that he would be terminated from his position, 

effective immediately, due to his conduct. Id. at 12. The appellant’s termination 

notice specified that he was charged with two felony counts on October 28, 2014, 

and that he made admissions to a detective regarding conduct supporting the 

charges on September 7, 2014. Id. at 12, 16, 21-24. The alleged criminal 

conduct occurred in July 2013, prior to his appointment. Id. at 16. 

¶3 The appellant filed a Board appeal alleging, in pertinent part, that he was 

terminated for preappointment reasons without the procedures set forth

at 5 C.F.R. § 315.805. IAF, Tab 1 at 4, 6. The administrative judge issued an 

order requiring the appellant to submit evidence and argument establishing that 

his appeal was within the Board’s jurisdiction. IAF, Tab 2 at 2-5. The agency 

responded to the order, arguing that the appeal should be dismissed for lack of 

jurisdiction, IAF, Tab 4 at 4-6, but the appellant did not respond. 

¶4 Without holding the appellant’s requested hearing, the administrative judge 

dismissed the appeal for lack of jurisdiction. IAF, Tab 5, Initial Decision (ID) 

at 1-4. He found that the appellant failed to raise a nonfrivolous allegation that 

he was terminated for preappointment reasons because the record indicated that 

the appellant was terminated based on “the misconduct of admitting the alleged 
3

criminal conduct to the authorities” and the resulting felony charges, both of 

which occurred after his appointment to the Federal service. ID at 3 & n.*. 

¶5 The appellant has filed a petition for review in which he argues that he was 

terminated for preappointment reasons and disputes the merits of the agency’s 

termination decision. Petition for Review (PFR) File, Tab 1 at 3, Tab 2 at 8,

Tab 4 at 3. The agency has opposed the petition for review. PFR File, Tab 5. 

ANALYSIS

¶6 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 appellant bears the 

burden of proving Board jurisdiction by preponderant evidence. 5 C.F.R. 

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

makes a nonfrivolous allegation of Board jurisdiction, i.e., an allegation of fact 

that, if proven, could establish a prima facie case that the Board has jurisdiction 

over the matter at issue. Francis v. Department of the Air Force, 120 M.S.P.R. 

138, ¶ 14 (2013). 

¶7 It is undisputed that, as a probationary employee in the competitive service 

with less than 1 year of current continuous service, the appellant has no statutory 

right of appeal to the Board under 5 U.S.C. chapter 75. See 5 U.S.C. 

§ 7511(a)(1)(A); Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005). 

Moreover, he did not allege that his termination was based upon either partisan 

political reasons or marital status, which would give rise to a regulatory right of 

appeal under 5 C.F.R. § 315.806(b). IAF, Tab 1; PFR File, Tabs 1-2, 4. 

¶8 However, under 5 C.F.R. § 315.806(c), a probationary employee whose

termination was based in whole or in part on conditions arising before his 

appointment may appeal his termination to the Board on the ground that it was

not effected in accordance with the procedural requirements set forth in 5 C.F.R. 

§ 315.805. In such appeals, the merits of the agency’s termination decision 
4

are not before the Board. 2 Hope v. Department of the Army, 108 M.S.P.R. 6,

¶ 7 (2008). Rather, if an appellant nonfrivolously alleges that he was terminated 

based in whole or in part on preappointment reasons and that the agency failed to 

afford him the procedural protections of 5 C.F.R. § 315.805, then the Board has 

jurisdiction to determine whether the agency, in fact, failed to follow the 

procedures of 5 C.F.R. § 315.805, and, if so, whether such procedural error was 

harmful. See Hope, 108 M.S.P.R. 6, ¶¶ 7-8. 

¶9 We agree with the appellant that his termination was based, at least in part, 

on his alleged preappointment criminal conduct. PFR File, Tab 1 at 3, Tab 2 at 8,

Tab 4 at 3. The termination notice stated that it was not in the agency’s best 

interest to continue his employment because his “admitted conduct,” which 

occurred prior to his appointment, was contrary to agency core values and “fails 

to demonstrate the integrity and character befitting a federal employee.” IAF,

Tab 4 at 12. Furthermore, the agency submitted an affidavit from the deciding 

official, who stated that, although the appellant informed his supervisor of his 

arrest at the time that he was charged, the agency did not terminate his 

employment until it subsequently obtained additional information, including 

certain details regarding the alleged criminal conduct at issue. Id. at 9. Thus, a 

reasonable interpretation of the evidence of record establishes that the agency 

terminated the appellant’s employment due, at least in part, to the nature of his 

alleged preappointment conduct. 

¶10 The agency argues on review that the appellant’s alleged criminal conduct 

was merely a preexisting condition that affected his postappointment conduct or 

performance and, therefore, he was terminated based solely on postappointment 

reasons. PFR File, Tab 5 at 5-7. We disagree and find that the cases that the 

agency relies upon in support of this argument are distinguishable. In 

 2 Therefore, we do not address the appellant’s arguments on review that he has not been 

found guilty yet of the charged felonies and that he was treated differently than a

similarly situated employee because these contentions relate solely to the merits of the 

termination decision. See PFR File, Tab 1 at 3, Tab 2 at 8, Tab 4 at 3. 
5

Von Deneen v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d, 

837 F.2d 1098 (Fed. Cir. 1987) (Table), the Board found that a probationer was 

terminated for postappointment reasons where he was denied a security clearance 

required for his position, although the basis for denying the clearance was a 

condition that existed prior to his appointment. Similarly, in Rivera v. 

Department of the Navy, 114 M.S.P.R. 52, ¶ 8 (2010), the Board found that, even 

assuming that a probationer’s failure to qualify for a government credit card was 

attributable to his preappointment credit history, his termination for failure to 

secure approval for the card constituted a postappointment reason for termination 

because securing the card was a requirement of his position, which he failed to 

satisfy. In Cunningham v. Department of the Army, 119 M.S.P.R. 147, 

¶ 8 (2013), the Board found that, even assuming that the probationer’s 

postappointment performance deficiencies were caused by a preexisting medical 

condition, her termination for deficient performance was done for 

postappointment reasons. 

¶11 In contrast, in the present case, the appellant did not fail to satisfy any 

requirement of his position as a result of his postappointment admissions and 

criminal charges, and his performance was not deficient. Instead, the admissions 

and the criminal charges merely revealed the appellant’s alleged preappointment 

criminal conduct, which was the basis for his termination. 

¶12 We find Jones v. Department of Justice, 524 F. App’x 660 (Fed. Cir. 2013),

to be more analogous in this regard. 3

 In Jones, while an individual was serving a 

probationary period for a Cook Supervisor position, the Bureau of Prisons Office 

of Internal Affairs (OIA) issued a report concluding that he had committed 

misconduct in a prior position as a Correctional Officer. Jones, 524 F. App’x 

at 661-62. Thereafter, the agency terminated his employment based upon the 

 3 Although the court has designated the decision in Jones as nonprecedential, the Board 

may follow a nonprecedential decision where, as here, it finds it persuasive. Dean v. 

Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14 (2010). 
6

misconduct at issue in the OIA report. Id. at 662. Although the probationer’s 

preappointment misconduct was not substantiated until the postappointment 

issuance of the OIA report, the court found that the Board correctly concluded 

that he was terminated for preappointment reasons. Id. at 663-64. Similarly, 

here, although the appellant’s postappointment alleged admissions and criminal 

charges revealed his alleged preappointment misconduct, he was terminated based 

on the underlying alleged misconduct, which is a preappointment reason. 

¶13 Because the appellant was terminated for preappointment reasons, he was 

entitled to the procedural protections set forth in 5 C.F.R. § 315.805. It is 

undisputed that the agency did not provide the appellant with these procedural 

rights, which include advance notice of the termination, an opportunity to 

respond, and consideration of the response. See IAF, Tab 4 at 12; 5 C.F.R. 

§ 315.805. Therefore, the relevant inquiry is whether the agency’s failure to 

follow these procedures was harmful error. Hope, 108 M.S.P.R. 6, ¶ 7. 

¶14 It is well established, however, that harmful error cannot be presumed; an 

agency error is harmful only where the record shows that it was likely to have 

caused the agency to reach a conclusion different from the one it would have 

reached in the absence or cure of the error. Id., ¶ 8. Further, the burden is on the 

appellant to show that the procedural error was harmful. 5 C.F.R. 

§ 1201.56(c)(3). Because the administrative judge found that the Board lacked 

jurisdiction over this appeal, the record is not developed on the issue of whether 

the appellant met his burden of establishing that the agency would not have 

terminated him had it provided him with advance notice of the termination, an 

opportunity to respond, and consideration of his response. On remand, the 

administrative judge shall provide the appellant with notice of what is necessary 

to establish harmful error and afford the parties the opportunity to present 

evidence and argument on this issue. 

¶15 In addition, we note that the appellant indicated on his initial appeal form 

that the agency made a negative suitability determination. IAF, Tab 1 at 4. The 
7

record does not contain further mention of such a claim, which has a particular 

meaning in Board law that may not apply here, see 5 C.F.R. part 731, and the 

appellant may have intended to abandon such a claim. On remand, the 

administrative judge shall provide the appellant with notice of the burdens and 

elements of proof to establish jurisdiction over a claim that he was subjected to a 

negative suitability determination, and either adjudicate the claim or document 

the appellant’s desire to withdraw such a claim, as appropriate. Cf. Wynn v. U.S. 

Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010) (finding that, when an appellant 

raises an affirmative defense in an appeal by checking the appropriate box on an 

appeal form, the administrative judge must address the affirmative defense in any 

close of record order or prehearing conference summary and order). 

ORDER

¶16 For the reasons discussed above, we REMAND this appeal to the regional 

office for further adjudication in accordance with this Order. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board