Hernandez v. Merit Systems Protection Board
662 F. App'x 968
| Fed. Cir. | 2016Background
- Hernandez was hired as an excepted-service FBI Special Agent on August 10, 2014, with veteran’s preference (one-year probation requirement).
- The agency terminated him effective March 19, 2015, for failure to meet suitability standards (about seven months after hire).
- Hernandez appealed to the Merit Systems Protection Board (MSPB), alleging improper removal procedures, racial discrimination under 5 U.S.C. § 2302, and USERRA discrimination based on prior military service.
- The Administrative Judge dismissed the appeal for lack of jurisdiction, finding Hernandez had not completed one year of current continuous service as required by 5 U.S.C. § 7511(a)(1)(B).
- The Board affirmed, holding military service cannot be added to civilian excepted-service time for the § 7511 service requirement; therefore the Board lacked jurisdiction over the termination and related discrimination claims.
- Hernandez appealed to this court, which reviews jurisdictional legal issues de novo and factual findings for substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez met the one-year current continuous service requirement under 5 U.S.C. § 7511(a)(1)(B) | Hernandez: his prior military service should count toward the one-year continuous service requirement | Board/Agency: only civilian excepted-service time counts; military time cannot be combined | Held: Hernandez did not meet the one-year requirement; military service cannot be added to civilian service for § 7511 purposes; Board lacked jurisdiction |
| Whether the MSPB had jurisdiction over Hernandez’s discrimination claims (mixed-case) | Hernandez: discrimination claims accompany wrongful termination and should proceed | Board/Agency: MSPB jurisdiction over discrimination claims depends on jurisdiction over the underlying appealable action | Held: Because the Board lacked jurisdiction over the termination, it also lacked jurisdiction over the related discrimination claims |
| Applicability of probationary-employee regulation (5 C.F.R. § 315.806) | Hernandez: sought relief under the probationary-employee regulation | Board/Agency: regulation applies only to competitive-service probationary employees, not excepted-service | Held: § 315.806 does not apply because Hernandez was an excepted-service employee |
| Standard of review for the Board’s jurisdictional determination | Hernandez: (implicit) challenges Board’s finding on service credit | Board/Agency: factual findings should be upheld if supported by substantial evidence; legal question reviewed de novo | Held: Court reviews jurisdictional law de novo and factual findings for substantial evidence; substantial evidence supports Board’s findings |
Key Cases Cited
- Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210 (Fed. Cir. 2003) (jurisdictional legal questions reviewed de novo)
- Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313 (Fed. Cir. 1998) (factual findings reviewed for substantial evidence)
- Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197 (U.S. 1938) (defines substantial evidence standard)
- Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111 (Fed. Cir. 2013) (MSPB may adjudicate mixed-case discrimination claims only if it has jurisdiction over the underlying action)