Wei Wang v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WEI WANG,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1215
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-20-0753-I-1.
______________________
Decided: June 10, 2024
______________________
WEI WANG, Arlington, VA, pro se.
D EANNA SCHABACKER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before L OURIE, P ROST , and STARK, Circuit Judges.
P ER CURIAM .
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WANG v. MSPB 2
Wei Wang appeals a Merit Systems Protection Board
(“MSPB”) final decision concluding that Ms. Wang failed to
make a nonfrivolous allegation of jurisdiction. Wang v.
Dep’t of Labor, No. DC-315H-20-0753-I-1, 2023 WL
8253733 (M.S.P.B. Nov. 28, 2023) (“Board Decision”). For
the following reasons, we affirm.
BACKGROUND
Ms. Wang was employed, subject to a one-year proba-
tionary period, as a career-conditional economist at the De-
partment of Labor (“Labor”). Before the end of her
probationary period, Labor sent her a letter proposing to
terminate her employment based on a preliminary deter-
mination that her “continued employment pose[d] an unac-
ceptable risk for both the security and confidentiality” of
Labor’s data and reputation. S. App’x 33.1 The notice of
proposed termination stated that Labor had been informed
that Ms. Wang was under criminal investigation relating
to an alleged incident at her former employer. Ms. Wang
acknowledged receipt of this letter. Ms. Wang also re-
sponded to the proposed notice by email, explaining the cir-
cumstances of her investigation. Labor then sent her a
decision letter informing her that it was terminating her
employment and that she had only a limited right, as a pro-
bationer, to appeal her termination to the MSPB.
Ms. Wang appealed her termination to the MSPB. The
Administrative Judge (“AJ”) issued an order to show cause
on jurisdiction and timeliness, explaining that Ms. Wang
had not appeared to make a nonfrivolous allegation of
MSPB jurisdiction and that her appeal appeared to be un-
timely. S. App’x 36–45. Ms. Wang did not respond to the
order to show cause. Afterward, the AJ dismissed Ms.
Wang’s appeal for failure to make a nonfrivolous allegation
1 “S. App’x” refers to the supplemental appendix in-
cluded with the government’s informal brief.
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WANG v. MSPB 3
of MSPB jurisdiction. Specifically, the AJ concluded that
Ms. Wang was not an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i) or (ii) due to her probationary status and
that Ms. Wang had not made a nonfrivolous allegation of
jurisdiction as a probationer under 5 C.F.R. §§ 315.805,
315.806(c). S. App’x 14–19. The AJ’s dismissal did not ad-
dress the timeliness of Ms. Wang’s appeal.
Ms. Wang filed a petition for review, and the full MSPB
issued a final decision upholding the AJ’s initial decision.
Specifically, the MSPB determined that Ms. Wang failed to
make a nonfrivolous allegation that (1) she was an “em-
ployee” under 5 U.S.C. § 7511(a)(1)(A) or (2) her procedural
rights under 5 C.F.R. § 315.805 were violated. Board De-
cision, 2023 WL 8253733, at *4.
Ms. Wang timely appealed to this court. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
This court must affirm a decision of the MSPB unless
we find it “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). We review the MSPB’s jurisdictional
determinations de novo. Palmer v. MSPB, 550 F.3d 1380,
1382 (Fed. Cir. 2008). Factual findings underlying the
MSPB’s jurisdictional determinations are reviewed for sub-
stantial evidence. Bledsoe v. MSPB, 659 F.3d 1097, 1101
(Fed. Cir. 2011).
Typically, MSPB jurisdiction is available only to an
“employee.” See Pervez v. Dep’t of Navy, 193 F.3d 1371,
1375 (Fed. Cir. 1999). An “employee” is “an individual in
the competitive service—(i) who is not serving a probation-
ary or trial period under an initial appointment; or (ii) who
has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or
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WANG v. MSPB 4
less.” 5 U.S.C. § 7511(a)(1)(A). Office of Personnel Man-
agement (“OPM”) regulations, however, “provide a narrow
exception to the non-reviewability of termination during
the probationary period.” Pervez, 193 F.3d at 1375.
As relevant here, “[a] probationer whose termination is
subject to [5 C.F.R.] § 315.805 may appeal on the ground
that [her] termination was not effected in accordance with
the procedural requirements of that section.” 5 C.F.R.
§ 315.806(c). The requirements under § 315.805 apply
“when an agency proposes to terminate an employee serv-
ing a probationary or trial period for reasons based in
whole or in part on conditions arising before [her] appoint-
ment.” Id. § 315.805. These requirements include that the
probationer: (1) “is entitled to an advance written notice
stating the reasons, specifically and in detail, for the pro-
posed action,” (2) “is entitled to a reasonable time for filing
a written answer to the notice of proposed adverse action
and for furnishing affidavits in support of [her] answer”
and that “[i]f the employee answers, the agency shall con-
sider the answer in reaching its decision,” and (3) “is enti-
tled to be notified of the agency’s decision at the earliest
practicable date” in writing. Id. § 315.805(a)–(c). The no-
tice of the agency’s decision shall “inform the employee of
the reasons for the action, inform the employee of [her]
right of appeal to the [MSPB], and inform [her] of the time
limit within which the appeal must be submitted.” Id.
§ 315.805(c).
A petitioner appealing her termination must make a
nonfrivolous allegation of MSPB jurisdiction. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). A nonfrivolous allegation is one “that,
if proven, could establish the matter at issue” and must be
“more than conclusory,” “plausible on its face,” and “mate-
rial to the legal issues in the appeal.” 5 C.F.R. § 1201.4(s).
The determination of whether a jurisdictional allegation is
nonfrivolous may be done on the written record. Kahn v.
Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).
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WANG v. MSPB 5
Ms. Wang, acknowledging that she does not qualify as
an employee, asserts jurisdiction as a probationer under 5
C.F.R. §§ 315.805 and 315.806(c). She argues that she
made a nonfrivolous allegation of jurisdiction on two bases:
that (1) Labor did not confirm whether she acknowledged
receipt of the notice of proposed termination; and (2) Labor
denied her an opportunity to respond to her proposed ter-
mination. On the written record submitted with her initial
appeal and petition for review, neither basis supplies a
nonfrivolous allegation of MSPB jurisdiction.2
We start with Ms. Wang’s argument that Labor’s fail-
ure to confirm receipt of the notice of proposed termination
provides a nonfrivolous allegation of jurisdiction. Her ar-
gument has no basis in § 315.805. An agency must merely
provide advanced written notice of the proposed adverse
action and adverse decision. 5 C.F.R. § 315.805(a), (c).
Nothing in § 315.805 requires confirming receipt of the pro-
posed notice, and Ms. Wang does not identify any source of
law requiring such confirmation. And even if such confir-
mation were required, Ms. Wang essentially confirmed re-
ceipt when she responded to Labor regarding the merits of
her termination. S. App’x 53. Ms. Wang’s first basis thus
does not provide a nonfrivolous allegation of jurisdiction.
We now turn to Ms. Wang’s argument that Labor’s fail-
ure to provide her an opportunity respond to her proposed
termination provides a nonfrivolous allegation of jurisdic-
tion. Ms. Wang’s argument is not “plausible on its face” in
light of the evidence she submitted with her initial appeal.
5 C.F.R. § 1201.4(s)(2). The notice of termination that she
submitted demonstrates that she responded to the notice
of proposed termination and that Labor considered her re-
sponses in its decision to terminate her employment.
2 Neither party disputes that Ms. Wang’s firing was
“based in whole or in part on conditions arising before [her]
appointment.” 5 C.F.R. § 315.805.
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WANG v. MSPB 6
S. App’x 53. Ms. Wang’s second basis likewise fails to pro-
vide a nonfrivolous allegation of jurisdiction.
CONCLUSION
We have considered Ms. Wang’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the MSPB’s decision.
AFFIRMED
COSTS
No costs.
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