Willie C. Julian v. Department of Justice
Background
- Appellant (Willie C. Julian) was terminated during his probationary period by the Department of Justice effective February 19, 2016, and appealed to the MSPB alleging lack of required procedural protections and, alternatively, that he was an employee entitled to appeal under 5 U.S.C. § 7511(a)(1)(A).
- Appellant relied on prior service at the IRS (appointed Dec. 30, 2013 NTE Dec. 27, 2014; extended; later converted to GS-06 still NTE Dec. 26, 2015) to claim he had completed a probationary period or otherwise was not in a temporary appointment.
- Appellant submitted an IRS offer letter and a vacancy announcement that referenced a 1-year probationary period and conditional tenure; IRS SF-50s and other documents consistently described the appointments as temporary NTE (not to exceed) 1 year and seasonal.
- Administrative judge issued an initial decision dismissing for lack of jurisdiction, finding appellant failed to nonfrivolously allege he was an "employee" under 5 U.S.C. § 7511(a)(1)(A) because his IRS service was temporary and could not be credited toward DOJ probation.
- The Board denied the petition for review, agreeing the totality of the record showed two consecutive temporary appointments limited to 1 year and seasonal work, and that the agency afforded required procedural protections under 5 C.F.R. § 315.805.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant is an "employee" under 5 U.S.C. § 7511(a)(1)(A)(i)/(ii) based on prior IRS service | Appellant argued IRS offer letter and vacancy announcement show a career-conditional/probationary appointment (not temporary), so prior service should count toward appeal rights | Agency pointed to SF-50s, vacancy announcement, and offer letter language showing NTE 1-year temporary/seasonal appointments; prior service cannot be credited toward DOJ probation | Held: Appellant failed to nonfrivolously allege non-temporary service; prior IRS appointments were temporary NTE 1 year and do not confer § 7511(a)(1)(A) employee status |
| Whether the Board has jurisdiction over appellant's probationary termination for failure to receive required procedural protections under 5 C.F.R. § 315.805 | Appellant claimed he was not provided materials relied on or oral reply opportunity | Agency showed it provided advance written notice, opportunity for written response considered by deciding official, and written termination notice | Held: Agency afforded required procedures; Board lacks jurisdiction over termination appeal |
| Whether discrimination claims may be heard absent appealable action | Appellant raised discrimination claims if termination not otherwise appealable | Agency argued jurisdictional threshold not met absent employee status or appealable action | Held: Without otherwise appealable action (i.e., employee status), Board lacks jurisdiction over discrimination claims |
Key Cases Cited
- Bell v. Department of Homeland Security, 95 M.S.P.R. 580 (MSPB) (interpretation of employee status under § 7511)
- Scott v. Department of the Air Force, 113 M.S.P.R. 434 (MSPB) (totality of circumstances test for nature of appointment)
- Roden v. Tennessee Valley Authority, 25 M.S.P.R. 363 (MSPB 1984) (series of temporary appointments can constitute non‑temporary service when not for limited projects)
- Mitchell v. Merit Systems Protection Board, 741 F.3d 81 (Fed. Cir. 2014) (18‑month NTE appointment not temporary where not limited to 1 year and agency did not treat it as short‑term)