Stephen B. LeMaster v. Department of Veterans Affairs
2016 MSPB 25
| MSPB | 2016Background
- Appellant was hired Nov 16, 2014 as a GS‑5 competitive‑service employee subject to a 1‑year probationary period.
- Agency terminated him Feb 13, 2015, citing “conduct issues” tied to a June 22, 2007 court‑ordered probation agreement that restricted computer/internet use and required disclosure to employers.
- Appellant claimed the termination was based on preappointment conditions and that the court had modified the probation in 2012 to permit monitored computer use; his probation officer had approved him taking the job after consulting HR.
- Agency argued termination was for postappointment reasons (performance after hire and failure to disclose later) and moved to dismiss for lack of Board jurisdiction.
- The administrative judge dismissed for lack of jurisdiction, finding postappointment reasons; the Board on review reversed, finding the termination was at least partly based on preappointment conditions and remanded for adjudication of whether the agency’s failure to afford 5 C.F.R. § 315.805 procedures was harmful error.
Issues
| Issue | LeMaster's Argument | VA's Argument | Held |
|---|---|---|---|
| Whether Board has jurisdiction under 5 C.F.R. § 315.806(c) because termination was based in whole or in part on preappointment conditions | Termination based on probation conditions that preexisted appointment; probation was modified 2012 and probation officer approved hire | Termination was for postappointment reasons — appellant’s later conduct/failure to disclose after hire caused inability to perform | Board: Jurisdiction exists under § 315.806(c); termination was at least partly based on preappointment probation conditions, so appellant entitled to § 315.805 procedures |
| Whether agency’s failure to provide § 315.805 procedural protections warrants reversal without remand | Argues agency failed to give advance notice, chance to respond, consideration; appellant bears burden to show harmful error | Agency did not provide § 315.805 procedures but contends termination was postappointment so different standard applies | Board: Agency’s procedural failures cannot be presumed harmful; remanded for development of record on whether the lack of § 315.805 procedures was harmful error |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir.) (Board’s jurisdictional limits and appellant’s burden of proof)
- Von Deneen v. Department of Transportation, 837 F.2d 1098 (Fed. Cir.) (distinguishable: termination after denial of postappointment security clearance based on preexisting condition)
- Jones v. Department of Justice, [citation="524 F. App'x 660"] (Fed. Cir.) (probationer terminated after postappointment substantiation of preappointment misconduct; treated as preappointment basis)