UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LUIS R. MARQUEZ,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

SF-315H-16-0521-I-1

DATE: May 27, 2022

THIS ORDER IS NONPRECEDENTIAL1

Jim Dougherty, Esquire, Walnut Creek, California, for the appellant.

David M. Kahn, Esquire, San Francisco, California, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

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

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

reasons discussed below, we GRANT the appellant’s petition for review and 

REMAND his Uniformed Services Employment and Reemployment Rights Act of 

1994 (USERRA) claim to the Western Regional Office for further adjudication in 

accordance with this Order.

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 Effective May 13, 2016, the agency terminated the appellant’s employment

during his 1-year probationary period for unacceptable performance. 2 Initial 

Appeal File (IAF), Tab 1 at 12. The termination letter specified the deficiencies 

in his performance and advised him of his Board appeal rights. Id. at 12-13.

¶3 The appellant filed an appeal, challenging the merits of his termination and 

alleging that he was terminated due to his disability, race, color, national origin, 

sex, and age, and for unspecified, preappointment reasons. IAF, Tab 1 at 7, 

Tab 10 at 51-55, Tab 12 at 4. He claimed that he had 15 years and 3 months of 

Federal service, including 6 years of prior employment with a different agency,

and that a probationary period was “not applicable” to his situation. IAF, Tab 1 

at 3, 62. He also argued that the agency terminated him without providing 

“notice, a right to answer, and then a final decision.” IAF, Tab 12 at 4. He 

further alleged that by terminating him, the agency violated his USERRA rights 

under 38 U.S.C. § 4311 and obstructed his right to compete for employment in 

violation of 5 U.S.C. § 2302(b)(4). Id. at 4, 18-20.

¶4 The administrative judge notified the appellant that the Board may lack 

jurisdiction over his termination, informed him of his burden of establishing that 

he was an employee with statutory appeal rights under 5 U.S.C. chapter 75 or a 

probationer with regulatory appeal rights under 5 C.F.R. § 315.806, and afforded 

him an opportunity to respond. IAF, Tab 2 at 2-5. The administrative judge also 

granted the agency’s motion to stay discovery pending a ruling on the 

jurisdictional issue. IAF, Tabs 5, 7, 11. Although the appellant agreed to the 

extension, he later submitted a pleading reflecting that he wished to engage in 

discovery. IAF Tab 5 at 2, Tab 9 at 5.

 

2 Although neither party supplied documentation reflecting the nature of the appellant’s 

appointment, it appears that it was in the competitive service. Initial Appeal File, Tab 1 

at 12-13; see 5 C.F.R. § 315.201(a) (discussing a career-conditional appointment, like 

the appellant’s, as a type of competitive-service appointment). 
3

¶5 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction, without holding the requested hearing. IAF, Tab 1 at 4;

Tab 15, Initial Decision (ID) at 1, 3. He found that the appellant was a 

probationary employee. ID at 1. He also found that the appellant failed to allege 

a preappointment reason for his termination and, thus, was not entitled to the 

procedural protections under 5 C.F.R. § 315.805. ID at 3. He further found that 

the appellant did not allege any other basis for Board jurisdiction over his 

termination. Id. He therefore found that the Board also lacked jurisdiction over 

the appellant’s prohibited personnel practice claims. Id. The administrative 

judge received the appellant’s additional jurisdictional response after the initial 

decision’s issuance and therefore rejected it. IAF, Tab 17; see 5 C.F.R. 

§ 1201.112(a) (explaining that after the initial decision is issued, the 

administrative judge retains only limited jurisdiction over the case).

¶6 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tabs 1, 3. The agency has filed a response, to which the appellant has 

replied.3 PFR File, Tabs 4, 7.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The appellant alleges that the administrative judge erred by rejecting his 

additional jurisdictional response as untimely, denying his right to discovery, and 

failing to adjudicate his discrimination claims. PFR File, Tab 1 at 4, Tab 7 at 4-9. 

He also claims that the administrative judge erroneously found that he was 

 

3 We deny the appellant’s motion for leave to file additional pleadings on the timeliness 

of his July 12, 2016 jurisdictional response. PFR File, Tab 10. As discussed below, we 

find his response to be timely filed, and we consider it on review. The appellant also 

filed a motion for leave to submit a list of six Board decisions he argues are “relevant” 

to his timeliness claim. PFR File, Tab 12. To the extent these decisions would 

constitute new and material evidence, an adjudicatory body is presumed to be “aware of 

relevant precedent in [its jurisdiction].” Boyer v. United States, 84 Fed. Cl. 751, 756 

(2008). Therefore, the appellant’s motion for leave is denied.
4

terminated for postappointment reasons and was not entitled to the processes

afforded by 5 U.S.C. § 7513(b) or 5 C.F.R. § 315.805. PFR File, Tab 7 at 9-11.

The appellant failed to nonfrivolously allege Board jurisdiction over his 

probationary termination.

¶8 During a June 28, 2016 telephonic conference with the parties, the appellant 

requested an extension of time to file his jurisdictional response, which the 

administrative judge granted. PFR File, Tab 4 at 9, Tab 7 at 6. He ordered the 

appellant to file his response on or before July 12, 2016.4 Id. The appellant 

submitted a copy of the tracking information and the envelope showing that his 

response was mailed on July 12, 2016. PFR File, Tab 3, Subtab 4 at 3, Subtab 15. 

The date of filing by mail is determined by the postmark date. 5 C.F.R. 

§ 1201.4(l). Accordingly, we find that his July 12, 2016 response was timely 

filed, even though the administrative judge did not receive it until July 13, 2016. 

Thus, we consider his response on review. PFR File, Tab 3. Nonetheless, we 

find that these additional arguments do not provide a basis for altering the 

administrative judge’s finding that the Board lacks jurisdiction over the 

appellant’s probationary termination.

¶9 The appellant bears the burden of proving jurisdiction by preponderant 

evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). To have Board appeal rights under 

5 U.S.C. chapter 75, an appellant must, among other things, show that he satisfied 

one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. 

§ 7513(d). If he fails to satisfy the definition of “employee,” he nevertheless may 

have the right to appeal his termination to the Board under 5 C.F.R. § 315.806. In 

relevant part, 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 

 

4

The administrative judge apparently did not issue a written order on the appellant’s 

request for an extension of time to file. While the parties disagree as to whether the 

appellant’s jurisdictional response was timely filed, both acknowledge that the 

administrative judge ordered the appellant “to file” his jurisdictional response on or 

before July 12, 2016. PFR File, Tab 4 at 7, Tab 7 at 6.
5

appointment may appeal his termination on the ground that it was not effected in 

accordance with the procedures set forth in 5 C.F.R. § 315.805.

5

¶10 Although the appellant claims entitlement to appeal rights under 5 U.S.C. 

chapter 75, he does not challenge the administrative judge’s finding that he was a 

probationary employee at the time of his termination. ID at 3. Moreover, 

according to the appellant’s additional evidence, he has no prior Federal civilian 

service. PFR File, Tab 3, Subtab 27 at 46-48, 57. Apparently, his 15 years of 

prior Federal service was military service, and his other prior Government service 

was with the State of California. Id. Thus, the appellant failed to nonfrivolously 

allege that he was an employee with Board appeal rights under 5 U.S.C. 

chapter 75. See Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 5 (2008) 

(finding that a competitive-service appointee can tack certain prior service in the 

same agency onto his current appointment to complete his probationary period).

¶11 The appellant also argues in his additional jurisdictional response that the 

agency terminated him due to his preexisting disability, race, and national origin. 

PFR File, Tab 3, Subtab 2 at 1-4. The procedural safeguards of 5 C.F.R. 

§ 315.805 do not apply to physical conditions predating employment that affect 

an employee’s performance. Holloman v. Department of the Navy, 31 M.S.P.R. 

107, 110 (1986). Rather, they are required if the separation of the employee was 

proposed for reasons other than performance deficiencies. Id. Thus, his medical 

condition, race, and accent, although preexisting, are not preappointment 

conditions within the meaning of 5 C.F.R. § 315.805. Id. We therefore find that 

he was not entitled to the process afforded by that provision and failed to allege a 

basis for jurisdiction under 5 C.F.R. § 315.806. 

 

5

The appellant has not challenged, and we discern no error with, the administrative 

judge’s finding that the appellant made no claims that his termination was based on 

partisan political reasons or marital status discrimination under 5 C.F.R. § 315.806(b). 

ID at 3.
6

¶12 In the absence of an otherwise appealable action, the Board may not 

adjudicate the appellant’s nonUSERRA-related discrimination, due process, and 

prohibited personnel practice claims. See Garcia v. Department of Homeland 

Security, 437 F.3d 1322, 1342-43 (2006) (reaffirming that the Board may not 

decide issues within its pendent or ancillary jurisdiction in the absence of an 

otherwise appealable action), superseded by regulation on other grounds, as 

stated in Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 10 (2016).

The appellant’s remaining challenges to the administrative judge’s finding that 

the Board lacks jurisdiction over his probationary termination do not state a basis 

for review.

¶13 The appellant contends that the administrative judge erroneously denied 

him his right to discovery. PFR File, Tab 7 at 8; IAF, Tab 14. An appellant is 

entitled to request discovery of relevant materials to assist him in meeting his 

burden of establishing Board jurisdiction. See Russo v. Department of the Navy, 

85 M.S.P.R. 12, ¶ 8 (1999). However, here, the appellant admitted that the 

purpose of his discovery requests was to obtain information on the merits of his 

termination and his pendant discrimination claims, which do not affect Board 

jurisdiction in this matter. IAF, Tab 8 at 14-15. He therefore has not shown that 

the administrative judge’s order to stay discovery prejudiced his ability to meet 

his jurisdictional burden. See Karapinka v. Department of Energy, 6 M.S.P.R. 

124, 127 (1981) (finding that an administrative judge’s procedural error is of no 

legal consequence unless it is shown to have adversely affected a party’s 

substantive rights).

¶14 We also find no merit to the appellant’s claim that the administrative judge 

exhibited bias warranting recusal by issuing the initial decision without 

considering his July 12, 2016 jurisdictional response and by denying his request 

for discovery. PFR File, Tab 7 at 6, 8. It is well settled that an administrative 

judge’s case-related rulings, even if erroneous, are insufficient to establish bias 
7

and that claims of perceived adjudicatory errors simply do not provide a basis for 

recusal. Hay v. U.S. Postal Service, 106 M.S.P.R. 151, ¶ 18 (2007).

The administrative judge did not notify the appellant of his jurisdictional burden 

concerning his USERRA claim.

¶15 The appellant, whose veteran status is undisputed, reasserts on review his 

claim that the agency violated 38 U.S.C. § 4311 by terminating him. PFR File, 

Tab 3, Subtab 27, Exhibit 600 at 1, 17. The administrative judge, however, did 

not notify him of how to establish jurisdiction over his USERRA claims, and the 

agency’s responses below did not cure this error. Thus, we must remand the 

appeal to ensure that the appellant receives notice of the jurisdictional burden 

regarding his USERRA claim.6 See Burgess v. Merit Systems Protection Board, 

758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive 

explicit information on what is required to establish an appealable jurisdictional 

issue).

ORDER

For the reasons discussed above, we remand the USERRA claims to the 

Western Regional Office for further adjudication in accordance with this Remand

Order. The administrative judge should provide the appellant with the following 

as to his USERRA jurisdictional burden: specific notice, an

 

6

The appellant’s USERRA claims do not provide a basis for conferring Board 

jurisdiction over his due process, nonUSERRA discrimination, or prohibited personnel 

practice claims. See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15 

(2001) (reaffirming that the Board’s authority to review USERRA claims does not 

provide a basis for reviewing other claims of prohibited discrimination).
8

opportunity to conduct discovery, and an opportunity to present evidence and 

argument.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board