UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JONATHON M. SINCLAIR,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-16-0565-I-1

DATE: October 21, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jonathon M. Sinclair, Henderson, Nevada, pro se.

Shari Mauney, Esquire, Phoenix, Arizona, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member 

Tristan L. Leavitt, Member

Member Limon recused himself and 

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

fact; the initial 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 

administrative 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. 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, 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). 

BACKGROUND

¶2 On September 7, 2014, the agency used a Veterans Recruitment 

Appointment (VRA) authority under the Jobs for Veterans Act, Pub. L. No. 

107-288, 116 Stat. 2033 (2002), to appoint the appellant to the excepted-service 

position of Mail Clerk, GS-0305-05. Initial Appeal File (IAF), Tab 5 at 21. On 

August 9, 2015, the appellant began a new VRA with the agency in the 

excepted-service position of Warehouse Helper, BB-6907-00. Id. at 17-19. The 

appointment documentation informed him that he was required to satisfactorily 

complete a new 2-year trial period. Id. On June 2, 2016, the agency terminated 

his appointment, citing misconduct on May 24-25, 2016. Id. at 14-16.

¶3 On June 17, 2016, the appellant filed the instant appeal with the Board. 

IAF, Tab 1. After issuing an order on jurisdiction informing the appellant of his 

burdens and reviewing the parties’ responses, the administrative judge dismissed 

the appeal for lack of jurisdiction without holding the requested hearing. IAF,

Tab 7, Initial Decision (ID) at 1.
3

¶4 The appellant has filed a petition for review of the initial decision. Petition 

for Review (PFR) File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Whether the Board has appellate jurisdiction by statute in a removal or 

other adverse action depends on whether the appellant is a Federal “employee” as 

defined by 5 U.S.C. § 7511(a)(1). Smirne v. Department of the Army, 

115 M.S.P.R. 51, ¶ 5 (2010). The appellant asserted below, and the agency did 

not dispute, that he was a preference-eligible veteran detailed to the Warehouse 

Helper position from May 14, 2015, until his official appointment to that position 

on August 9, 2015. IAF, Tab 1 at 1, 8. As a preference eligible in the excepted 

service, the appellant would need to have completed 1 year of current continuous 

service in the same or similar positions with the agency in order to have appeal 

rights before the Board. 5 U.S.C. § 7511(a)(1)(B); ID at 5.

¶6 We agree with the administrative judge that the appellant’s service on a 

detail does not entitle him to the rights of the position to which he was detailed 

and therefore cannot be credited toward his completion of 1 year of service in the 

same or similar positions. ID at 5; see Wafford v. U.S. Postal Service, 

34 M.S.P.R. 691, 693 (1987). We further find that the appellant failed to make a 

nonfrivolous allegation that his Mail Clerk position was the “same or similar” to 

his Warehouse Helper position in that they did not involve related or comparable 

work that required the same or similar skills. See Martinez v. Department of 

Homeland Security, 118 M.S.P.R. 154, ¶ 9 (2012) (citing Mathis v. U.S. Postal 

Service, 865 F.2d 232, 234 (Fed. Cir. 1988)). The appellant failed to make even a 

bare assertion that the Mail Clerk and Warehouse Helper positions were the same 

or similar. IAF, Tabs 1, 6; PFR File, Tab 1. Nor does the record contain any 

information regarding the duties of the positions. Accordingly, the appellant 

failed to make a nonfrivolous allegation that he was an “employee” with Board 

appeal rights under 5 U.S.C. chapter 75.
4

¶7 On review, the appellant alleges for the first time that his termination was 

based on partisan political reasons and/or preappointment reasons. PFR File, 

Tab 1 at 4-5. As with career or career-conditional employees, individuals who 

are terminated during the first year of their VRA may appeal to the Board if they 

contend that they were terminated based on partisan political reasons, their 

marital status, or for reasons based on conditions arising before their appointment 

without being afforded the procedural due process rights set forth at 5 C.F.R. 

§ 315.805. LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 2 

n.1 (2016); 5 C.F.R. §§ 307.105, 315.806. Although the administrative judge 

informed the appellant of the Board’s jurisdiction over such matters, IAF, Tab 3 

at 4-5, the appellant failed to make any assertion below that his termination was 

based on such reasons, IAF, Tabs 1, 6. Because the appellant raised this 

argument for the first time on review, and he has not shown that he based his 

argument on new and material evidence not previously available despite his due 

diligence, the Board will not consider it. Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d).

¶8 For the reasons set forth above, we deny the appellant’s petition for review 

and affirm the initial decision dismissing his appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
5

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 
6

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
7

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.3The court of appeals must receive your petition for 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
8

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board