Jurisdiction Argument after Delay in Appeal

In Smart v. Department of Justice, 2010 MSPB 49 (March 9, 2010), the appellant received a career appointment in the competitive service as a Deputy U.S. Marshal on June 9, 1991, subject to a completion of a one-year probationary period. Before the year was up, the agency terminated him, alleging unacceptable performance and conduct. The termination letter advised Mr. Smart that he had a "limited right to appeal to the Board as a probationary employee" and also advised him that he had the right to file an EEO complaint.

Smart did not believe he met either of the limited conditions for an appeal, as he did not claim that his termination was a result of discrimination based on partisan political reasons or marital status. He did, however, initiate an EEO complaint alleging race discrimination. The EEOC disposed of that complaint in December 1994, with the agency's final decision that Smart had failed to prove race discrimination in the 1991 removal.

On September 1, 2008, more than 17 years after the original termination, Smart filed an appeal with the MSPB, stating the 1991 dismissal was improper because the Department of Justice had then failed to give him the option of appealing to the Board. The initial 2008 appeal was dismissed for lack of Board jurisdiction when the administrative judge (AJ) ruled that Smart had not alleged either of the grounds for appealing a termination from a probationary appointment. The AJ did not reach the timeliness issue.

Smart appealed to the Board, arguing that the AJ had failed to consider that he had in fact begun federal service in July of 1979, and that in August 1991, he either could show that his prior service could be "tacked" to his one-year probationary period or that he otherwise met the definition of an employee under 5 U.S.C. Section 7511(a)(1)(A)(ii). The Board vacated the initial decision and remanded the case to the AJ to develop the record sufficiently to address the jurisdictional issue, and to rule on timeliness if jurisdiction was found.

The AJ found jurisdiction but ruled the appeal untimely. Smart appealed again. This time, he persuaded the Board to apply, retroactively, a 2002 federal court case that would support Smart's argument that in August 1991 he was in fact an "employee" under 5 U.S.C. Section 7511(a)(1)(A)(ii), and therefore enjoyed full appeal rights. The Board ruled that Smart did not show, however, that he had completed his probationary period when he was separated in September 1991. The Board's recent decision remanded the case a second time for further consideration of whether Smart established that he was an "employee" in 1991, and thus that the Board had jurisdiction, and also ordered the AJ to make a timeliness determination in accordance with those findings.