Salahuddin v. Merit Systems Protection Board , 690 F. App'x 668 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AKBAR SALAHUDDIN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1654
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-315H-16-0305-I-1
______________________
Decided: June 7, 2017
______________________
AKBAR SALAHUDDIN, Louisville, KY, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE M. SMITH,
BRYAN G. POLISUK.
______________________
Before NEWMAN, LOURIE, and HUGHES, Circuit Judges.
PER CURIAM.
2 SALAHUDDIN V. MSPB
Akbar Salahuddin appeals from the final order of the
Merit Systems Protection Board dismissing his appeal for
lack of jurisdiction. Because the Board did not err in
concluding that it lacked jurisdiction, we affirm.
I
The Department of the Army appointed
Mr. Salahuddin to the position of Human Resources
Assistant effective March 23, 2015. This position was
subject to a one-year probationary period. The Depart-
ment terminated Mr. Salahuddin on March 21, 2016 for
“failure to demonstrate fitness for continued Federal
employment.” Appx. 2.
Mr. Salahuddin appealed his termination. The Ad-
ministrative Judge dismissed his appeal for lack of juris-
diction, finding that because Mr. Salahuddin was serving
a probationary period when he was terminated, he was
not an employee entitled to appeal rights. Mr. Salahud-
din then petitioned to the full Board, which affirmed the
Administrative Judge’s decision.
Mr. Salahuddin appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We may only hold unlawful and set aside any agency
action, findings, or conclusions found to be “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Whether the Board has jurisdiction to adjudi-
cate an appeal is a question of law, which we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). We are bound by the Board’s factual
findings on which a jurisdictional determination is based
unless those findings are not supported by substantial
SALAHUDDIN V. MSPB 3
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
The Board has jurisdiction to hear an appeal from an
adverse action taken against “an individual in the com-
petitive service . . . who has completed 1 year of current
continuous service,” 5 U.S.C. § 7511(a)(1)(A), or from any
adverse action based on partisan political reasons or
marital status, see Pervez v. Dep’t of Navy, 193 F.3d 1371,
1375 (Fed. Cir. 1999).
Mr. Salahuddin alleges that he qualified as an “em-
ployee” because he completed 365 days of continuous
service prior to his termination. Because he was termi-
nated on a leap year, Mr. Salahuddin argues that his
probationary period ended at the close of business on
March 21, 2016. In response, the Board maintains the
one year probationary period ended on March 22, the day
before the anniversary date of Mr. Salahuddin’s initial
appointment.
The definition of one year, as used in the statute, is a
legal question that we review de novo. We have previous-
ly held that the one year probationary period ends on the
day before the anniversary date of the initial appoint-
ment. Hardy v. Merit Sys. Prot. Bd., 13 F.3d 1571, 1573
(Fed. Cir. 1994). The Board has similarly applied this
definition for the one year period. See, e.g., Scull v. Dep’t
of Homeland Sec., 113 M.S.P.R. 287, 293 (2010).
Mr. Salahuddin cites Tom v. Dep’t. of Interior for the
proposition that the Board previously defined one year of
service as 365 days. 32 M.S.P.R. 126 (1987). Mr. Sala-
huddin’s reliance on Tom is misplaced. In Tom, the Board
considered whether “seasonal employment . . . for more
than four years constitutes ‘current continuous service in
the same or similar positions.’” 32 M.S.P.R. at 128 . In
doing so, the Board held that it could properly consider
the employee’s service before the 365-day period preced-
ing the agency’s adverse action. Id. at 130. But the
4 SALAHUDDIN V. MSPB
Board in Tom did not define the one-year period as 365
days for the purposes of determining the probationary
period.
We have considered Mr. Salahuddin’s other argu-
ments and determined that they lack merit.
Because Mr. Salahuddin was terminated during his
probationary period, the Board properly dismissed the
appeal for lack of jurisdiction. Therefore, we affirm the
Board’s decision.
AFFIRMED
No costs.