Sky E. Zaloudik v. Department of the Air Force
Background
- Appellant Sky E. Zaloudik appealed his November 30, 2015 probationary termination from the Department of the Air Force to the MSPB; the administrative judge dismissed for lack of jurisdiction.
- Zaloudik claimed ~8 years of combined prior service with the agency and a ~1.5‑year break in service before the November 2015 appointment.
- The November 30, 2015 appointment was a competitive‑service appointment subject to a one‑year probationary period; he was terminated about six months into that appointment.
- Tacking prior service to complete a probationary period requires service immediately preceding the appointment, same agency and line of work, and no break over 30 days; Zaloudik’s prior service ended by resignation on August 8, 2014 (≈15 months earlier).
- Alternatively, to qualify as an "employee" under 5 U.S.C. § 7511(a)(1)(A)(ii) an appellant must have completed one year of current continuous service immediately preceding the adverse action; Zaloudik did not allege one continuous year and admitted at least a 2‑month break.
- Zaloudik also raised arguments on the merits (including completion of an alcohol rehabilitation program), but the Board treated those as irrelevant to jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zaloudik was an “employee” with appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i) (completed probationary period by tacking prior service) | Prior agency service (totaling ~8 years) should be counted toward completing probation | Prior service did not immediately precede the probationary appointment and there was a break >30 days, so tacking is unavailable | Board held no nonfrivolous allegation of employee status under (i); prior service did not qualify for tacking |
| Whether Zaloudik met the alternative employee definition under 5 U.S.C. § 7511(a)(1)(A)(ii) (one year of current continuous service) | He alleged combined prior service and claimed service continuity sufficient to confer rights | He did not allege one year of current continuous service and admitted a break of at least ~2 months before the appointment | Board held no nonfrivolous allegation of employee status under (ii); continuous service requirement not met |
| Whether the Board should consider the merits (e.g., rehabilitation) when deciding jurisdiction | Merits evidence (rehab completion) show he can perform duties and thus challenge termination on merits | Merits do not affect the jurisdictional question; Board must first have jurisdiction before reaching merits | Board rejected merits arguments as irrelevant to jurisdiction and affirmed dismissal for lack of jurisdiction |
Key Cases Cited
- Hurston v. Department of the Army, 113 M.S.P.R. 34 (MSPB 2010) (requirements for tacking prior service to complete probationary period)
- Ellefson v. Department of the Army, 98 M.S.P.R. 191 (MSPB 2005) (definition of “current continuous service” for competitive‑service employees)
- Schmittling v. Department of the Army, 219 F.3d 1332 (Fed. Cir. 2000) (merits decisions are nullities absent Board jurisdiction)
- Sapla v. Department of the Navy, 118 M.S.P.R. 551 (MSPB 2012) (merits arguments are not relevant to Board jurisdiction)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (timeliness rules for appeals to the Federal Circuit)