Thomas Turner v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS TURNER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE ARMY,
Intervenor
______________________
2016-1161
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-315H-15-0358-I-1.
______________________
Decided: September 26, 2016
______________________
RONALD P AUL ACKERMAN, Law Offices of Ronald P.
Ackerman, Culver City, CA, for petitioner.
MICHAEL ANTON CARNEY , Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.

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TURNER v. MSPB 2
ALEXANDER O RLANDO CANIZARES , Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for intervenor. Also represented
by REGINALD T. BLADES , J R., ROBERT E. K IRSCHMAN, J R.,
BENJAMIN C. MIZER.
______________________
Before M OORE, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
Thomas Turner appeals from a Merit Systems Protec-
tion Board (“Board”) decision dismissing his appeal for
lack of jurisdiction. We affirm the dismissal of
Mr. Turner’s appeal.
BACKGROUND
Mr. Turner was selected for the position of IT Special-
ist, GS-12, Step 6 with the Department of the Army
(“agency”) at the Hydrology and Hydraulics Branch, Los
Angeles District. His start date was set for December 27,
2013, but to accommodate Mr. Turner, the agency and
Mr. Turner agreed to an enter-on-duty (“EOD”) date of
January 13, 2014. The agency executed a Standard Form
50 (“SF-50”) effective January 13, 2014. At Mr. Turner’s
request, the agency and Mr. Turner agreed to again
postpone his EOD date, this time to January 27, 2014.
To cancel the January 13, 2014 SF-50, the agency ex-
ecuted a second SF-50 with the remark, “[a]ction cancel
due to incorrect effective date.” Petr’s App. 117. A Hu-
man Resources (“HR”) Specialist submitted a declaration
that the SF-50 was cancelled because Mr. Turner was
unable to report at that time, and a new request was
submitted for the new EOD date. The agency executed a
third SF-50 that indicated that the effective date was
January 27, 2014 and that Mr. Turner’s appointment was

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TURNER v. MSPB 3
subject to completion of a one-year probationary period
which begins on January 27, 2014.
On January 27, 2014, Mr. Turner reported to work.
Effective January 23, 2015, the agency terminated him
for failing to meet the performance standards of the
position and obtain IT certifications in the mandated
timeframe. On February 24, 2015, he appealed his ter-
mination to the Board. Two days later, the Administra-
tive Judge (“AJ”) issued an Acknowledgement Order
notifying Mr. Turner that the Board may lack jurisdiction
over his appeal and informing him of his burden to prove
Board jurisdiction. Mr. Turner argued that the effective
date of his agency appointment was Sunday, January 26,
2014, the start of his first pay period. He argued he had
completed his one-year probationary period because his
one-year anniversary date was Monday, January 26, 2015
and he completed his tour of duty on Friday, January 23,
2015.
In the Initial Decision, the AJ dismissed Mr. Turner’s
appeal for lack of jurisdiction without a hearing because
he failed to proffer non-frivolous allegations that he was
an “employee” pursuant to 5 U.S.C. § 7511(a)(1)(A)(i) or
(ii). The AJ determined that Mr. Turner’s termination
became effective Friday, January 23, 2015 and that
Mr. Turner’s one-year anniversary date was Tuesday,
January 27, 2015. The AJ further determined that
Mr. Turner was not an “employee” for the purposes of
5 U.S.C. § 7511(a)(1)(A) because the agency terminated
him during his one-year probationary period and before
he had completed one year of current continuous service.
Mr. Turner petitioned for review of the Initial Deci-
sion and, for the first time, argued that he was appointed
to his position on January 13, 2014. He presented a copy
of a Civilian Leave and Earnings Statement showing he
was on leave without pay for the pay period ending Janu-
ary 25, 2014. The Board rejected Mr. Turner’s argument

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TURNER v. MSPB 4
and affirmed the Initial Decision, relying on the HR
Specialist’s declaration and the supporting SF-50s to find
the agency appointed Mr. Turner to his position on Janu-
ary 27, 2014. Mr. Turner appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We affirm a final decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). The Board’s decision to dis-
miss for lack of jurisdiction presents an issue of law that
we review de novo. Campion v. Merit Sys. Prot. Bd., 326
F.3d 1210, 1212 (Fed. Cir. 2003). We review the factual
findings underlying the Board’s decision for substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). Substantial evidence “means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v.
Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938).
Mr. Turner bears the burden of establishing Board juris-
diction by a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
The Board has jurisdiction to review an appeal from
an agency’s termination decision from a competitive
service position if the terminated individual raises non-
frivolous allegations and proves by a preponderance of the
evidence that he is an “employee” within the meaning of
5 U.S.C. § 7511(a)(1)(A). 5 U.S.C. §§ 7512(1), 7513(d);
5 C.F.R. §§ 315.803(b), 752.401(c)(1)–(2), (d)(13),
752.405(a). An “employee” is an individual in the compet-
itive service who is not serving a probationary or trial
period under an initial appointment or has completed one
year of current continuous service under other than a

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TURNER v. MSPB 5
temporary appointment limited to one year or less.
5 U.S.C. § 7511(a)(1)(A)(i)–(ii).
On appeal, Mr. Turner argues “[t]he dispute is only
about the date Petitioner began his employment.” Petr’s
Br. 8. This is a fact question over which we must review
the Board’s decision for substantial evidence. It is true
under 5 C.F.R. § 315.802(c) that a period of leave without
pay status counts toward completion of a probationary
period up to a total of 22 workdays. This regulation
draws no distinction between absence in nonpay status
before or after an employee reports to work, but clearly
only applies in the case of an appointed employee.
Mr. Turner argues his time on leave without pay, before
the first day he reported to work, credits toward the
completion of his probationary period. Mr. Turner pre-
sented a Civilian Leave and Earnings Statement as
evidentiary support. Relying upon the HR Specialist’s
declaration and the supporting SF-50s which indicated
that Mr. Turner’s appointment was effective January 27,
2014 and that his probationary period began on that day,
the Board found that Mr. Turner had not established that
he was appointed on January 13, 2014. The HR Specialist
explained that Mr. Turner’s January 13, 2014 SF-50 was
cancelled because he was unable to report to duty. To
cancel the January 13, 2014 SF-50, the agency executed
another SF-50 that states, “[a]ction cancel due to incorrect
effective date.” A later-issued SF-50 lists Mr. Turner’s
effective date as January 27, 2014. This is substantial
evidence to support the Board’s finding that the agency
appointed Mr. Turner effective January 27, 2014. Be-
cause it is undisputed that the agency terminated
Mr. Turner effective January 23, 2015, Mr. Turner did not
complete his one-year probationary period or his one year
of current continuous service.
We have considered Mr. Turner’s remaining argu-
ments and find them to be without merit.

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TURNER v. MSPB 6
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
No costs.

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