Kent v. MSPB

Case: 20-1455 Document: 38 Page: 1 Filed: 08/05/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KENNETH RAY KENT, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2020-1455 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-315H-19-0661-I-1. ______________________

Decided: August 5, 2020 ______________________

KENNETH RAY KENT, Greenwood Village, CO, pro se.

STEPHEN FUNG, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH, TRISTAN LEAVITT. ______________________

Before PROST, Chief Judge, REYNA and TARANTO, Circuit Judges.

Case: 20-1455 Document: 38 Page: 2 Filed: 08/05/2020 2 KENT v. MSPB

PER CURIAM. Mr. Kenneth Ray Kent appealed his employment ter- mination from the Internal Revenue Service (“IRS”). The Merit Systems Protection Board (“Board”) dismissed Mr. Kent’s appeal for lack of jurisdiction. Mr. Kent now petitions for review. For the reasons below, we affirm the Board’s decision. BACKGROUND Mr. Kent was appointed to the position of Contact Rep- resentative at the IRS on July 26, 2004. Then, on May 27, 2005, Mr. Kent’s employment was terminated for “leave and AWOL issues.” S.A. 39. 1 Fourteen years later, Mr. Kent filed an appeal with the Board contesting his termination. See S.A. 1. Because Mr. Kent was terminated during the one-year probationary period noted on his appointment form, the administrative judge directed Mr. Kent and the IRS to address whether the Board had jurisdiction. S.A. 19–23. Mr. Kent had held other federal civilian positions several years before his ap- pointment, with a gap of several years in between. S.A. 2, 27–30, 49–52. After briefing, the administrative judge ini- tially issued an order declaring that the Board had juris- diction due to the length of Mr. Kent’s prior employment. S.A. 37–38. But several weeks later, the administrative judge reconsidered this determination in light of the mul- tiple-year break in Mr. Kent’s service and directed Mr. Kent to submit additional briefing regarding his em- ployment status. S.A. 40–41; see also id. at 42–58 (Mr. Kent’s response). Next, the administrative judge di- rected further briefing on the administrative mechanism

Case: 20-1455 Document: 38 Page: 3 Filed: 08/05/2020 KENT v. MSPB 3

used to appoint Mr. Kent. S.A. 59–60; see also id. at 65–75 (Mr. Kent’s response). The administrative judge ultimately concluded that be- cause Mr. Kent had failed to nonfrivolously allege that he was an “employee” for the purposes of 5 U.S.C. § 7511(a)(1)(A), Mr. Kent lacked the right to an appeal of his termination. S.A. 6. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction. S.A. 7. Mr. Kent did not seek administrative review of the admin- istrative judge’s initial decision, which therefore became the Board’s final decision. This petition for review fol- lowed. 2 We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). DISCUSSION I We must affirm the Board’s decision unless we find it to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). We decide de novo whether the Board has jurisdiction, while accepting the Board’s findings of fact if they are supported by substantial evidence. Parrott v. MSPB, 519 F.3d 1328, 1334 (Fed. Cir. 2008). The Board has limited jurisdiction under 5 U.S.C. § 7701. Removal from employment in the competitive ser- vice is appealable, but generally only if an individual qual- ifies as an “employee” under 5 U.S.C. § 7511(a)(1)(A) at the

Case: 20-1455 Document: 38 Page: 4 Filed: 08/05/2020 4 KENT v. MSPB

time of removal. McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002). A petitioner has the bur- den of establishing the Board’s jurisdiction. McCormick, 307 F.3d at 1340; 5 C.F.R. § 1201.56(b)(2)(i)(A). A peti- tioner who makes a nonfrivolous allegation of jurisdiction is entitled to an evidentiary hearing at which jurisdiction must be established by a preponderance of the evidence. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). Nonfrivolous allegations are “more than conclusory,” “plausible on [their] face,” and “material to the legal issues.” 5 C.F.R. § 1201.4(s). An administra- tive judge, in considering whether allegations are nonfriv- olous, may not weigh evidence or resolve the parties’ conflicting factual assertions. Dumas v. MSPB, 789 F.2d 892, 893–94 (Fed. Cir. 1986). The judge, however, may rely on the written record. Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008). Under § 7511(a)(1)(A), an individual in the competitive service is an “employee” if he is “not serving a probationary or trial period under an initial appointment” or he “has completed 1 year of current continuous service.” “Current continuous service” is a period of employment immediately preceding an adverse action without a break in federal ci- vilian employment of a workday. 5 C.F.R. § 752.402. Even if not “continuous,” prior service may count toward the one- year probationary period requirement if the service was rendered at the same agency, in the same line of work, and with no more than one 30-day-or-less break in service. 5 C.F.R. § 315.802(b). Alternatively, the probationary period is sometimes not required if the individual is “reinstated.” Through re- instatement, agencies may noncompetitively appoint indi- viduals who were previously employed in a career or career-conditional appointment. 5 C.F.R. § 315.401(a). An individual appointed by reinstatement is exempted from a probationary period if he completed one during his prior service. Id. § 315.801(a)(2). But reinstatement is

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discretionary, even for qualified candidates having “career” tenure status. See id. § 315.401(a) (“[A]n agency may ap- point by reinstatement . . . .” (emphasis added)); id. § 315.301(b); accord Shafer v. Dep’t of the Air Force, 935 F.2d 280 (Fed. Cir. 1991) (nonprecedential). II We agree with the Board that Mr. Kent has not made a nonfrivolous allegation that he was an “employee” under § 7511(a)(1)(A), because he was serving in a probationary period at the time of termination. It is undisputed that Mr. Kent was terminated less than one year after he started working for the IRS. S.A. 6. And because his previous federal civilian employment had occurred years prior, it could not count toward the proba- tionary period. S.A. 6. The only issue, then, is whether Mr. Kent was reinstated. Mr. Kent’s appointment SF-50 (Notification of Person- nel Action Form) states that his appointment was subject to completion of a one-year probationary period. S.A. 35. Regulations require that any individual appointed to a po- sition in the competitive service by selection from a certifi- cate of eligibles must serve a one-year probationary period. 5 C.F.R. § 315.801(a)(1). The Board found that Mr. Kent’s selection was from a certificate of eligibles. See S.A. 4–5, 35, 36. Indeed, the preferred federal hiring policy is through appointment via open competition. See 5 C.F.R. § 332.101(a). Consistently, Mr. Kent’s SF-50s use the OPM codes 101 and 100, which reflect selection from a certifi- cate. See S.A. 33 n.¹, 35–36, 56. In contrast, Mr. Kent’s previous SF-50s from reinstated positions use the OPM code 140. See S.A. 54–57. Additionally, the appointment SF-50 states “OPM DELE AGR CERT NO” as the legal au- thority for the appointment, which the Board reasonably found to indicate a delegation to the agency of OPM’s au- thority to assemble a certificate of eligibles. S.A. 5 (citing

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5 C.F.R. § 315.301), 35–36. 3 Likewise, the word “reinstate- ment” was absent from Mr. Kent’s appointments. S.A. 5, 35–36. Mr. Kent argued before the Board that the IRS “fla- grantly misapplied” OPM rules and “misclassified” him, rendering him a probationary employee. S.A. 46. But this allegation is conclusory. He further argued that he was “not initially chosen for 1 of many (10 or more) contact rep- resentative positions” and that “after ascertaining that in- formation,” he “called the [IRS] Director,” “informed the Director of [his] concerns” and reinstatement eligibility, and “subsequently received a phone call and was informed to report to” work. S.A. 47, 67–68. Even taken as true, Mr. Kent’s allegations do not plausibly establish that he was reinstated. Alternatively, Mr. Kent argues that because he at- tained “career” tenure status, see 5 C.F.R. §§ 315.301(b), 315.201(c)(2), the agency was required to reinstate him— or at the very least, no new probationary period was re- quired. Again we disagree. As discussed above, career sta- tus can qualify an individual for reinstatement. But reinstatement is a matter of discretion. See 5 C.F.R. § 315.401(a). And without reinstatement, Mr. Kent was re- quired to complete a probationary period before qualifying as an “employee” with appeal rights. See id. § 315.801(a)(1); see also 5 U.S.C. § 7511(a)(1)(A).

Case: 20-1455 Document: 38 Page: 7 Filed: 08/05/2020 KENT v. MSPB 7

CONCLUSION We have considered Mr. Kent’s other arguments but find them unpersuasive. 4 For the foregoing reasons, Mr. Kent has not established that he was entitled to bring an appeal before the Board. Accordingly, we affirm the Board’s decision dismissing his appeal. AFFIRMED COSTS Each party shall bear its own costs.

Footnotes

[1] We cite the supplemental appendix (“S.A.”) filed with the government’s response brief.

[2] Mr. Kent filed a motion to supplement, presenting arguments in response to the Board’s response brief. See Mot. to Suppl., ECF No. 34. We accept Mr. Kent’s filing and have considered Mr. Kent’s arguments in this opinion.

[3] Mr. Kent argues that the lack of a specific numeric code for this authority on the face of the SF-50 renders the authority invalid. Though the Board chided the agency for not including the certificate number, the Board nonethe- less disagreed with Mr. Kent, finding no legal authority in support of his proposition. We agree with the Board.

[4] The Board did not reach the issue of whether Mr. Kent’s appeal was timely. Mr. Kent has asked us by motion to review this issue on appeal in the first instance. See Mot. to Review Entire Record, ECF No. 33. We need not reach this issue because the question of Mr. Kent’s “em- ployee” status is dispositive, and therefore deny the mo- tion. We also deny Mr. Kent’s motion for an extension of the hearing, see Mot. to Extend Hearing, ECF No. 35, as we note that this case is resolved without oral argument, and Mr. Kent has had a full opportunity to respond—and has responded—to the Board’s response brief. See ECF Nos. 26, 27, 28, 29, 31, 34.