UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KRISTOPHER A. HIGGINS,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-315H-14-0609-I-1

DATE: October 10, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Kristopher A. Higgins, Bakersfield, California, pro se.

Sarah Dawn Dobbs, Fort Irwin, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed for lack of jurisdiction his appeal of his termination during his 

probationary period. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the judge’s rulings 

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The agency appointed the appellant to a competitive service position

effective March 10, 2014, subject to his successful completion of a 1-year 

probationary period. Initial Appeal File (IAF), Tab 8 at 12-13. Shortly 

thereafter, the appellant was required to submit to various medical tests because 

his position had medical standards that he was required to meet. See IAF, Tab 1 

at 18. On May 16, 2014, the appellant failed the Ishihara color blindness test, 

IAF, Tab 1 at 8, and, on May 20, 2014, the agency gave him notice of his 

termination during his probationary period because he failed to meet the physical 

terms and conditions of his position, IAF, Tab 8 at 10-11. On appeal, the 

administrative judge dismissed the appeal for lack of jurisdiction without holding 

a hearing. IAF, Tab 10, Initial Decision. 

¶3 Because the appellant was terminated from a competitive service position, 

he must satisfy the definition of “employee” set forth at 5 U.S.C. § 7511(a)(1)(A) 

to have Board appeal rights under chapter 75. See Henderson v. Department of 

the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). To qualify as an “employee” the 

appellant must show that he is not serving a probationary period or has completed 
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1 year of current, continuous service under other than a temporary appointment 

limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A); McCormick v. Department of 

the Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002). 

¶4 An appellant who has not served a full year under his appointment can show 

that he has completed his probationary period, and so is no longer a probationer, 

by tacking on prior service if the prior service was: (1) rendered immediately 

preceding the probationary appointment; (2) performed in the same agency; 

(3) performed in the same line of work; and (4) completed with no more than one 

break in service of less than 30 days. Henderson, 114 M.S.P.R. 149, ¶ 10. 

Alternatively, an employee can show that, while he may be a probationer, he is an 

“employee” with chapter 75 appeal rights because, immediately preceding the 

adverse action, he had completed at least 1 year of current, continuous service in 

federal civilian service without a break of a workday. Id. 

¶5 The appellant here served only 11 weeks of his 1-year probationary period. 

His prior federal civilian service was with Department of the Air Force, not in the 

same agency from which he was terminated. IAF, Tab 8 at 33. Thus, his prior 

federal service does not count towards the completion of his probationary period. 

Similarly, because his last period of prior federal employment ended on 

February 17, 2014, see IAF, Tab 9, Subtab N, he had a break in service of more 

than a workday between the end of his employment with Department of the Air 

Force and his appointment to the position in question and, therefore, he does not 

have 1 year of current, continuous service. Consequently, the appellant does not 

qualify as an “employee” under either 5 U.S.C. §§ 7511(a)(1)(A)(i) or (A)(ii). 

¶6 A probationary employee in the competitive service can only bring an 

appeal of his termination if he was discriminated against because of his marital 

status or partisan political affiliation or if the agency action was based in whole 

or in part on issues that arose pre-appointment and the required procedures were 

not followed. Henderson, 114 M.S.P.R. 149, ¶ 9. The appellant here was 

terminated because he failed a post-appointment medical examination and failed 
4

to meet the medical standards for his position. IAF, Tab 8 at 10-11. Although his 

medical condition existed before his appointment, that does not mean that he was 

terminated for pre-appointment reasons. See Rivera v. Department of the Navy, 

114 M.S.P.R. 52, ¶ 8 (2010) (termination for failing to meet the requirements of 

his position during his probationary period because of his pre-employment credit 

history was a termination for post-appointment reasons). Therefore, the Board 

only has jurisdiction over the appellant’s termination if he shows that his 

termination was based on marital status discrimination or partisan political 

reasons. See, e.g., Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 8 (2007). 

The administrative judge correctly found that the appellant failed to allege that 

his termination was based on either ground, Initial Decision at 5-7, and we find 

that she correctly dismissed the appeal for lack of jurisdiction.

¶7 In his petition for review, the appellant contends that the agency violated its 

own rules when it administered only the Ishihara test and that the agency should 

have administered additional tests, such as the lantern test and the 

red/green/yellow test, which he would have passed. Petition for Review File, Tab 

1 at 3-5. He argues that he would have met the medical standards for his 

position, and was therefore wrongfully terminated. Id. at 3-9. These arguments, 

however, relate to the reasons underlying the termination and not the issue of 

Board jurisdiction and provide no basis to disturb the initial decision. See Rivera, 

114 M.S.P.R. 52, ¶ 7 (in an appeal of a termination during a probationary period, 

the merits of the agency’s decision are not before the Board).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:
5

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board