Curtis Gause v. Department of the Air Force
Background
- Appellant Curtis Gause, a WG-01 Maintenance Worker appointed Dec. 14, 2015, was terminated May 23, 2016 during his 1‑year probationary period.
- He appealed to the MSPB seeking review of his probationary termination but did not request a hearing.
- The administrative judge notified Gause of the burdens to establish Board jurisdiction and ordered him to respond; Gause did not comply.
- The AJ dismissed the appeal for lack of jurisdiction, finding Gause failed to raise nonfrivolous allegations that, if proven, would establish Board jurisdiction (no claim of marital or partisan-based termination; no proof he had completed prior probation).
- On petition for review, Gause submitted a 2013 certificate recognizing 10 years of federal service and moved for leave to file it; the Board denied the motion because the certificate was available before the record closed and did not demonstrate continuous prior civilian service or position.
- The Board denied review and affirmed the initial decision; it notified Gause of his right to seek review in the U.S. Court of Appeals for the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over a probationary termination appeal | Gause contends he previously completed probation (asserting prior federal service) and thus is not a probationary employee | Agency contends termination occurred during the mandatory 1‑year probationary period and procedures under 5 C.F.R. § 315.805 were followed | Held: No jurisdiction — Gause failed to make nonfrivolous allegations or submit proof of prior continuous civilian service or prior completed probation |
| Whether newly submitted evidence on review should be considered | Gause submitted a 2013 certificate of 10 years federal service and asked to file it on review | Agency opposed; argued evidence was available earlier and irrelevant to continuous prior service | Held: Denied — Board will not consider evidence first submitted on review absent due diligence showing unavailability; certificate did not prove relevant continuity or position |
| Whether failure to respond to AJ orders warrants dismissal | Gause did not respond to AJ's notices explaining jurisdictional elements | Agency asserted dismissal appropriate given noncompliance and lack of jurisdictional pleading | Held: Dismissal affirmed — nonresponse and lack of nonfrivolous jurisdictional allegations justified dismissal |
| Whether appellant alleged prohibited bases for termination (marital status or partisan politics) | Gause did not allege these bases | Agency denied such bases and maintained proper probationary termination | Held: No such allegations — absence of these claims supports dismissal for lack of jurisdiction |
Key Cases Cited
- Avansino v. U.S. Postal Service, 3 M.S.P.R. 211 (1980) (Board will not consider new evidence on review absent showing it was unavailable below despite due diligence)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court generally will not waive statutory filing deadlines for appeals to the Federal Circuit)