                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CORRETTA LEOLA YOUNG,                           DOCKET NUMBER
                  Appellant,                         DC-315H-15-0450-I-1

                  v.

     U.S. TAX COURT,                                 DATE: November 9, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Corretta Leola Young, Upper Marlboro, Maryland, pro se.

           Douglas W. Snoeyenbos, Esquire, and Stephanie A. Servoss, Esquire,
             Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her termination appeal for lack of jurisdiction. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. However, we MODIFY the initial
     decision regarding the administrative judge’s finding that the appellant’s position
     was excluded by statute from coverage under 5 U.S.C. chapter 75. Infra ¶¶ 6-7.
     Except as expressly MODIFIED by this Final Order to reflect that the appellant’s
     position was, in fact, covered under title 5 of the United States Code, we
     AFFIRM the initial decision.
¶2         The appellant is a nonpreference-eligible individual.      Initial Appeal File
     (IAF), Tab 1 at 2, Tab 9 at 21.       Effective November 30, 2014, the agency
     appointed her to the excepted-service position of GS-06 Legal Clerk, subject to a
     1-year trial period. IAF, Tab 9 at 21-22. The agency terminated the appellant
     effective January 23, 2015. Id. at 28. The appellant filed a Board appeal and
     requested a hearing.       IAF, Tab 1.      The administrative judge issued an
     acknowledgment order informing the appellant that the Board might not have
     jurisdiction over her appeal, notifying her of the jurisdictional issues, and
     ordering her to file evidence and argument thereon. IAF, Tab 2 at 3-5.
¶3        After the parties responded, the administrative judge issued an initial
     decision dismissing the appeal for lack of jurisdiction on the basis that the
     appellant failed to make a nonfrivolous allegation that she was an employee with
     appeal rights under 5 U.S.C. chapter 75. IAF, Tab 13, Initial Decision (ID). The
                                                                                           3

     appellant has filed a petition for review, the agency has filed a response, and the
     appellant has filed a reply. Petition for Review (PFR) File, Tabs 1,3,5. 2
¶4         As a nonpreference eligible in the excepted service, the appellant was
     entitled to appeal to the Board if, at the time of her termination, she was an
     “employee” under 5 U.S.C. § 7511(a)(1)(C). Ellefson v. Department of the Army,
     98 M.S.P.R. 191, ¶ 8 (2005). That section defines “employee” as “an individual
     in the excepted service (other than a preference eligible) - (i) who is not serving a
     probationary or trial period under an initial appointment pending conversion to
     the competitive service; or (ii) who has completed 2 years of current continuous
     service in the same or similar positions in an Executive agency under other than a
     temporary appointment limited to 2 years or less.” There is no indication that the
     appellant was serving under an initial appointment pending conversion to the
     competitive service. Therefore, 5 U.S.C. § 7511(a)(1)(C)(i) does not apply, and
     the remaining issue is whether the appellant met the definition of “employee”
     under 5 U.S.C. § 7511(a)(1)(C)(ii). 3     See Forest v. Merit Systems Protection
     Board, 47 F.3d 409, 411-12 (Fed. Cir. 1995).
¶5         In this regard, the administrative judge found that the appellant did not meet
     the definition of “employee” because the agency terminated her before she
     completed 2 years of service in her position.       ID at 4 & n.2.     On review, the
     appellant argues that she had 2 years of service in the same or similar positions
     with the Social Security Administration, the Department of Justice, and the


     2
       The appellant filed information at PFR File, Tabs 4 and 6 as well. However, all of the
     information contained in PFR File, Tabs 4 and 6 is contained in PFR File, Tab 5.
     3
       The appellant argues on review that she was not serving a probationary period because
     she had already completed her probationary period during her previous Federal service.
     PFR File, Tab 1 at 5-6, Tab 5 at 5-7. The appellant, however, appears to be attempting
     to apply the competitive-service regulations of 5 C.F.R. subpart 315(H) to her
      excepted-service position. PFR File, Tab 1 at 5-6, Tab 5 at 5-7; see Campbell v. U.S.
     Postal Service, 88 M.S.P.R. 546, ¶ 9 (2001) (finding that 5 C.F.R. Subpart 315(H)
     applies only to certain employees serving in or separated from competitive-
     service positions).
                                                                                           4

     Department of Transportation.        PFR File, Tab 1 at 5-6, Tab 5 at 7, 10-11.
     However, even assuming that the appellant’s previous positions were the “same
     or similar” to her Legal Clerk position, the administrative judge correctly found
     that her prior service was not continuous with her service as a Legal Clerk. ID
     at 4 n.2; see Yeressian v. Department of the Army, 112 M.S.P.R. 21, ¶ 10 (2009)
     (defining “current continuous service” as service immediately prior to the action
     at issue without a break in service of a workday); 5 C.F.R. § 752.402(b) (same).
     Specifically, the appellant had a break in service of more than 9 years between
     her separation from her last position and her appointment to the Legal Clerk
     position.   PFR File, Tab 5 at 10.       We find that, because the appellant lacked
     2 years of current continuous service at the time of her termination, she is not an
     employee with chapter 75 appeal rights and the Board lacks jurisdiction over her
     appeal. See Roy v. Department of Justice, 115 M.S.P.R. 669, ¶ 8 (2011).
¶6         The administrative judge also found that the Board lacks jurisdiction over
     the appeal because title 5 of the United States Code does not apply to the
     appellant’s position in the first place. ID at 3-5. Specifically, he found that the
     appellant was appointed under 26 U.S.C. § 7471(a)(1), which provides that the
     Tax   Court   may    appoint    clerks    “without   regard   to   the   provisions   of
     title 5, United States Code, governing appointments in the competitive service.” 4
     ID at 4; IAF, Tab 9 at 21-22. On review, the appellant argues that her position
     was, in fact, covered under title 5. PFR File, Tab 1 at 4-5, Tab 5 at 6.
¶7         We agree with the appellant.        Excluding a position from the appointing
     requirements applicable to the competitive service means only that the position is
     in the excepted service; it does not mean that the position is excluded from the
     requirements of title 5 in general.      Chavez v. Department of Veterans Affairs,
     65 M.S.P.R. 590, 593 (1994). The statutory language at issue here is materially

     4
       Section 7471(a) of title 26 contains three separate appointing authorities for various
     types of Tax Court employees. They all contain the same operative language.
     26 U.S.C. § 7471(a)(1)-(3).
                                                                                      5

     identical to the statutory language at issue in Briggs v. National Council on
     Disability, 60 M.S.P.R. 331 (1994), aff’d, 83 F.3d 1384 (Fed. Cir. 1996).        In
     Briggs, the appellant was appointed under 29 U.S.C. § 783, “without regard to the
     provisions of Title 5 governing appointments in the competitive service.”
     60 M.S.P.R. at 334. The Board found that, although this appointment provision
     placed the appellant in the excepted service, it did not exclude her from coverage
     under chapter 75. Id. at 334-35. We likewise find that the language excepting
     26 U.S.C. § 7471(a) positions from competitive-service appointing provisions
     does not serve to exclude such appointments generally from chapter 75 coverage.
     Nevertheless, our finding does not change the result of this appeal because the
     appellant still fails to meet the basic definition of “employee” under 5 U.S.C.
     § 7511(a). Supra ¶ 5.
¶8         The administrative judge also found that the appellant lacked chapter 75
     appeal rights because she was an “at will” employee who could be terminated at
     any time.     ID at 4.   Specifically, 26 U.S.C. § 7471(a)(1) provides that a clerk
     appointed under that section “shall serve at the pleasure of the Tax Court,” and
     the Standard Form 50 documenting the appellant’s appointment states that “all
     appointments to the court are ‘at will’ meaning an employee serves at the court’s
     will and that they do not have appeal rights to the Merit Systems Protection
     Board.” IAF, Tab 9 at 22. On review, the appellant argues that the agency failed
     to raise this issue below and that the administrative judge raised it sua sponte in
     his initial decision. PFR File, Tab 5 at 4.
¶9         To the extent that the appellant is arguing that this issue was not properly
     raised, we disagree. The issue of the Board’s jurisdiction is always before it and
     may be raised at any time, below or on review, by the parties or by the Board
     sua sponte.    Campbell v. Office of Personnel Management, 90 M.S.P.R. 68,¶ 8
     (2001); Giove v. Department of Transportation, 89 M.S.P.R. 560, ¶ 8 (2001). We
     find plausible the agency’s and the administrative judge’s interpretation of the
     language regarding service “at the pleasure of the Tax Court.” However, we find
                                                                                       6

      it unnecessary at this time to make a conclusive determination on whether this
      language excludes 26 U.S.C. § 7471(a)(1) positions from chapter 75 coverage
      because the appellant fails to meet the chapter 75 definition of “employee”
      regardless. Supra ¶ 5.
¶10        Finally, we note that the agency argued below that all Tax Court positions
      are excluded from chapter 75 coverage because the Tax Court is not part of the
      Executive Branch and is therefore not an “agency” for purposes of 5 U.S.C.
      § 105. IAF, Tab 9 at 7-11. The administrative judge did not reach this issue in
      his initial decision, and, as the agency noted in its own motion to dismiss, this
      matter is the subject of some ongoing dispute, including a 2014 decision by the
      U.S. Court of Appeals for the District of Columbia Circuit, finding that the Tax
      Court is part of the Executive Branch.         IAF, Tab 9 at 10-11; Kuretski v.
      Commissioner of Internal Revenue, 755 F.3d 929, 932 (D.C. Cir. 2014). Like the
      administrative judge, we decline to reach this issue because, regardless of
      whether the Tax Court is an “agency” for purposes of 5 U.S.C. chapter 75, the
      appellant is still not an “employee” under that chapter. Supra ¶ 5.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.      You   must submit     your request to     the    court at the
      following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
      days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
                                                                                  7

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).       You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional        information   is   available    at    the     court’s    website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for your appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
