Is a final decision to terminate the training of a FAA Air Traffic Control Specialist — In Training employee by FAA management a reduction in grade or removal action based on unacceptable performance, or a major adverse personnel action that is appealable to the Merit Systems Protection Board?

QUESTIONS PRESENTED The FAA is generally exempted from the Title 5 Personnel Management System, yet FAA employees ' MSPB Appeal rights are retained. FAA’s employment ; policy of an Air Traffic Control Specialist In Training : (ATCS-IT) whose training was terminated by their Air Traffic Manager (ATM) due to unacceptable ' performance requires the employee be immediately placed on administrative duties. Through a subsequent process— a national group of FAA officials decide if the employee will be retained as an ATCS-IT at a different FAA facility with a lower grade and pay, or initiate separation from Federal Service. If the : ; national group of FAA officials decide to retain the ATCS-IT at a lower grade/pay position, the ATCS-IT is given a list of 5 or less different facilities to choose : ‘ from. If the ATCS-IT does not choose a facility in the list given to the ATCS-IT— per FAA employment policies FAA HRPM 1.14a— the FAA will initiate separation from Federal Service. The questions present are: 1. Is a final decision to terminate the training of a ; FAA Air Traffic Control Specialist — In Training employee by FAA management— a reduction in grade ; or removal action based on unacceptable performance, or a major adverse personnel action that is appealable to the Merit Systems Protection Board. If no: in the case the ATCS-IT is not retained by the FAA’s national group of officials or fails to select a N ii QUESTIONS PRESENTEDContinued lower/grade pay facility— during the separation from Federal Service procedures can the ATCS-IT re-challenge the final decision to terminate their training as an ATCS-IT . 2. Does subjecting a non-probationary Federal , employee to the effects of a proposed action— before the employee responds— violate due process by failing to allow a meaningful opportunity to respond to the action as held in Cleveland Ba. of Educ. v. Loudermiil, : 470 U.S. 532 (U.S. 1985)? 3. If an appellant/plaintiff of a MSPB mixed case fails to allege a Title VII discrimination claim in a district court complaint— is the appropriate venue for judicial review the Federal Circuit, or the district court? 4. The district court’s initial complaint lacked a specific Title VII discrimination claim, yet the complaint was listed as ‘filed under’ the Title VII in the opening statement as required under 5 U.S.C § 7703 (b) (2). Should the district court have liberally construed the pro se plaintiff's intent was to include a Title VII discrimination count?