UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CHRISTOPHER LEE FRED ETTE, Appellant,

v

. DEPARTMENT OF HOMELA ND SECURITY, Agency

. DOCKET NUMBER PH

- 315H

- 15

- 0136

- I

- 1

DATE: September 14, 2015



### THIS ORDER IS NONPRECEDENTIAL 1

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 appe llant 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 ap peal to the regional office for further adjudication
in a ccordance with this Order.

BACKGROUND ¶2 On May 18, 2014, the agen cy 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 F ederal
servi ce. 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, d ue 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 supp orting the charges on September 7, 2014. Id. at 1 2, 16, 21

- 24. The alleged cr iminal 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
h is 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 respon d

. ¶4 W ithout 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 te rminated for preappointment reasons because the record indicated that the appellant was terminated based on “ the misconduct of admitting the alleged3

criminal conduct to the authorities ” and the resulting felony charges, both of which occurred after his app ointment to the F ederal 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) F ile, Tab 1 at 3, Tab 2 at 8,
Tab 4 at 3

. T he 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 evid ence. 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 B oard 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. F rancis 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 h is termination was based upon either partisan politic al 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 fort h in 5 C.F.R. § 315.805

. In such appeals, the merits of the agency ’ s termination decision4

are not before the Board. 2 Hope v. Department of the Army
, 108 M.S.P.R. 6 , ¶ 7 (2008). Rather, if an appella nt nonfrivolously alleges that he was terminated
based in whole or in part on preappointment reasons and that t he agency failed to
afford h im 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 dem onstrate 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 tha t 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 natur e 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 argum ent 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 probation er 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 postappo intment 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 d eficiencies were caused by a preexisting medical condition, her termination for deficient performance was done for post appointment reasons. ¶11 In contrast, in the present case, the appellant did not fail to satisfy any requirement of his position as a resul t 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 condu ct, which was the basis for his terminat ion. ¶12 We find Jones v. Department of Justice , 524 F. App ’ x 660 (Fed. Cir. 201 3 ),
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 Interna l 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 nonp recedential, 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 repor t. 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 pre appointment reason. ¶13 Bec ause the appellant was terminated for preappointment reasons, he was entitled to the procedural protections set forth in 5 C.F.R. § 315.8 05 . I t is undisputed that the agency did not provide the appellant with the se procedural rights, which include advance notice of the termination, an opportunity to

re spond, 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 t he 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 presen t 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 negati ve suitability determination. IAF, Tab 1 at 4. The7

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 o r 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 b y checking the appropriate box o n 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 di scussed above, we REMAND this appeal to the regional office for further adjudication in a ccordance with this Order.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board