2022 MSPB 1
MSPB2022Background
- Bryant was appointed as a competitive‑service Nurse on June 13, 2016; an initial SF‑50 listed a 1‑year probationary period but a later SF‑50 corrected it to a 2‑year probationary period.
- The agency issued a termination letter dated June 9, 2017 and made the termination effective July 10, 2017 (more than 1 year but less than 2 years after appointment).
- Bryant appealed the termination; the administrative judge found she had completed 1 year of service and reversed the termination for lack of due process.
- The agency filed a petition for review, certifying compliance with the Board’s interim relief order (reinstatement effective October 20, 2017) and arguing the Board lacked jurisdiction because 10 U.S.C. § 1599e (2016 NDAA) made DOD appointments subject to a 2‑year probationary period.
- On review the Board held Bryant was subject to the DOD 2‑year probation rule, had not completed two years when terminated, and therefore was not an "employee" with chapter 75 appeal rights; the Board vacated the initial decision and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Bryant's Argument | Agency's Argument | Held |
|---|---|---|---|
| Whether the Board has chapter 75 jurisdiction over Bryant's termination | Bryant: she had completed 1 year of current continuous service and thus had appeal rights | Agency: 2016 NDAA (10 U.S.C. § 1599e) imposed a 2‑year probation for DOD hires, so Bryant lacked chapter 75 status | Held: No jurisdiction — Bryant was subject to 2‑year probation and had not completed it when terminated |
| Whether the agency complied with the Board’s interim relief order and Bryant’s petition for enforcement | Bryant sought back pay from the date of removal and filed a petition for enforcement | Agency certified reinstatement effective the initial decision date and submitted SF‑52 and email instructing return to duty; processing of back pay shown | Held: Agency’s certification and documentation were sufficient; petition for enforcement denied as improper procedural vehicle; Board treated it as certification challenge and found compliance |
| Whether agency paperwork (vacancy announcement, original SF‑50) showing 1‑year probation controls jurisdiction | Bryant relied on those documents to claim a 1‑year probation applied | Agency: statutory law controls; agency misstatements do not expand Board jurisdiction | Held: Statutes control; erroneous SF‑50 or vacancy announcement does not create Board jurisdiction |
| Whether the Board could reach Bryant’s due process claim | Bryant alleged she was denied an opportunity to respond to the termination | Agency argued lack of jurisdiction over the termination means no jurisdiction over constitutional claims | Held: Because Board lacks jurisdiction over the termination, it cannot reach the due process claim; dismissal required |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board jurisdiction is limited to matters granted by law)
- Grigsby v. Department of Commerce, 729 F.2d 772 (Fed. Cir. 1984) (SF‑50 is not dispositive of employee status or rights)
- Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210 (2009) (agency’s erroneous notice of appeal rights does not expand Board jurisdiction)
- Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018) (agency’s failure to advise of loss of appeal rights does not create those rights)
- Sanders v. Department of Homeland Security, 122 M.S.P.R. 144 (2015) (agency must pay back pay when it files a petition for review after interim relief)
- Caryl v. Department of the Treasury, 53 M.S.P.R. 202 (1992) (SF‑52 and agency communications may suffice to show compliance with interim relief)
- Elder v. Department of the Air Force, 124 M.S.P.R. 12 (2016) (petition for enforcement of interim relief is not the regulatory vehicle; treat as certification challenge)