UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TYRONE CRAWFORD,

Appellant,

v.

FEDERAL RETIREMENT THRIFT 

INVESTMENT BOARD,

Agency.

DOCKET NUMBER

DC-0752-15-0518-I-1

DATE: July 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

Dharmesh Vashee and Sivram D. Prasad, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

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

petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 terminated the appellant from the excepted service position of 

Attorney Advisor during his trial period for inadequate performance. Initial 

Appeal File (IAF), Tab 7 at 14. The appellant appealed the agency’s action. IAF, 

Tab 1. The administrative judge found that the appellant was not an employee 

with Board appeal rights because he was serving a probationary or trial period in 

the excepted service. IAF, Tab 9, Initial Decision.

¶3 In his petition for review, the appellant asserts that he has a 

constitutionally-protected property interest in his position and he has a right to 

notice and an opportunity to respond before he can be terminated, rights which 

the agency did not afford him. Petition for Review File, Tab 1.

¶4 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). Only an “employee,” as defined under 

5 U.S.C. chapter 75, subchapter II, can appeal to the Board from an adverse 

action such as a removal. Barrand v. Department of Veterans 

Affairs, 112 M.S.P.R. 210, ¶ 13 (2009); see 5 U.S.C. §§ 7511(a)(1), 7512(1), 

7513(d). A nonpreference-eligible individual in the excepted service is an 
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“employee” within the meaning of 5 U.S.C. § 7511 only if he: (1) is not serving a 

probationary or trial period under an initial appointment pending conversion to 

the competitive service; or (2) has completed 2 years of current continuous 

service in the same or similar positions in an Executive agency under other than a 

temporary appointment limited to 2 years or less. 5 U.S.C. § 7511(a)(1)(C)(i)-

(ii).

2 Here is it undisputed that the appellant was not preference-eligible. 

Further, the record reflects that he was serving a trial period, and he had served in 

his position for less than 1 year. Thus, we find that he was not an employee and 

the Board does not have jurisdiction over his appeal. Id. 

¶5 The appellant’s assertion that he was improperly denied a constitutional 

right to due process because he had a property interest in his position is 

unavailing. The appellant’s arguments that his termination did not comply with 

constitutional requirements are not within the Board’s jurisdiction because he was 

not an “employee” with chapter 75 appeal rights at the time of his termination. 

See McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594

¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386 

(2013). Accordingly, we find that the administrative judge properly dismissed 

this appeal for lack of jurisdiction. 

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:

 2 As an individual appointed in the excepted service, the appellant has no regulatory 

right to appeal under 5 C.F.R. § 315.806, which applies only to individuals in the 

competitive service. See Barrand, 112 M.S.P.R. 210, ¶ 13. The agency’s erroneous 

notice to the appellant that he had rights under 5 C.F.R. § 315.806 to appeal to the 

Board if he believed that the agency’s action was taken based on his marital status or 

for partisan political reasons, could not expand the Board’s jurisdiction. See IAF, Tab 7

at 14. 
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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 an appeal to the 

United States 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 Merit Systems Protection Board neither endorses the services
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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