NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHARESTA K. SANKEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1374
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-315H-17-0584-I-1.
______________________
Decided: July 13, 2018
______________________
SHARESTA K. SANKEY, Montgomery, AL, pro se.
SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Before WALLACH, LINN, and HUGHES, Circuit Judges.
PER CURIAM.
2 SANKEY v. MERIT SYS. PROT. BD.
Petitioner Sharesta K. Sankey seeks review of a Merit
Systems Protection Board (“MSPB”) final decision dis-
missing her appeal for lack of jurisdiction. See Sankey v.
Dep’t of Veterans Affairs, No. AT-315H-17-0584-I-1
(M.S.P.B. Nov. 13, 2017) (Resp’t’s App. 1–3). 1 We affirm.
BACKGROUND 2
Beginning on May 31, 2016, the Department of Veter-
ans Affairs (“VA”) employed Ms. Sankey as a Program
Support Assistant. See
id. at 2, 9. Ms. Sankey “received a
career-conditional appointment in the competitive ser-
vice . . . subject to a one-year probationary period.”
Id. at
2. On May 22, 2017, the VA terminated Ms. Sankey “due
to unacceptable conduct.”
Id. at 9; see
id. at 9–11. Ms.
Sankey appealed her termination to the MSPB. See
id. at
1. The MSPB dismissed Ms. Sankey’s appeal for lack of
jurisdiction, finding that Ms. Sankey did not have a
statutory or regulatory right to appeal her termination.
See
id. at 2–3.
1 An administrative judge issued an initial decision
on November 13, 2017, see Resp’t’s App. 1–3, which be-
came final on December 18, 2017, when Ms. Sankey did
not file a petition for review, see
id. at 3; see also 5 C.F.R.
§ 1201.113 (2018) (providing “[t]he initial decision of the
judge will become the [MSPB]’s final decision [thirty-five]
days after issuance” unless, inter alia, “(a) . . . any party
files a petition for review”). Therefore, we refer to the
Initial Decision as the MSPB’s Final Decision.
2 Because the material facts are not in dispute, we
cite to the Final Decision unless otherwise noted. See
generally Pet’r’s Br.; Resp’t’s Br.
SANKEY v. MERIT SYS. PROT. BD. 3
DISCUSSION
I. Standard of Review and Legal Standard
We “hold unlawful and set aside” an MSPB decision
that is: “(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) (2012). “The [MSPB]’s
determination that it lacks jurisdiction is a question of
law that we review de novo.” Lee v. Merit Sys. Prot. Bd.,
857 F.3d 874, 875 (Fed. Cir. 2017) (citation omitted).
“When the [MSPB] has made factual findings affecting
the jurisdictional inquiry, these findings are reviewed for
support by substantial evidence in the record.” Lentz v.
Merit Sys. Prot. Bd.,
876 F.3d 1380, 1384 (Fed. Cir. 2017)
(citation omitted). “Substantial evidence is more than a
mere scintilla of evidence, but less than the weight of the
evidence.” Jones v. Dep’t of Health & Human Servs.,
834
F.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation
marks and citations omitted).
“Removal from employment is an appealable action
where the individual qualifies as an ‘employee’ at the time
of her removal by the agency.” McCormick v. Dep’t of the
Air Force,
307 F.3d 1339, 1341 (Fed. Cir. 2002) (citation
omitted); see 5 U.S.C. § 7701(a) (“An employee . . . may
submit an appeal to the [MSPB] from any action which is
appealable to the [MSPB] under any law, rule, or regula-
tion.”). An employee is defined as, inter alia, “an individ-
ual in the competitive service . . . (i) who is not serving a
probationary or trial period under an initial appointment;
or (ii) . . . who has completed [one] year of current contin-
uous service under other than a temporary appointment
limited to [one] year or less.” 5 U.S.C. § 7511(a)(1)(A); see
Pervez v. Dep’t of the Navy,
193 F.3d 1371, 1375 (Fed. Cir.
1999) (explaining that “[g]enerally, an employee serving a
probationary period is not an ‘employee’ under 5 U.S.C.
4 SANKEY v. MERIT SYS. PROT. BD.
§ 7511(a)(1)(A)”). The MSPB “has jurisdiction when an
employee meets the definition of ‘employee’ provided by
subsection (i) or (ii)” of § 7511(a)(1)(A).
McCormick, 307
F.3d at 1342. Regulations provide certain “narrow excep-
tion[s]” to this probationary employee rule,
Pervez, 193
F.3d at 1375, such as where an employee alleges termina-
tion “based on partisan political reasons or marital sta-
tus,” 5 C.F.R. § 315.806(b).
II. The MSPB Properly Dismissed for Lack of Jurisdiction
Because Ms. Sankey Does Not Have a Statutory or Regu-
latory Right to Appeal
Ms. Sankey is not an employee with the right to ap-
peal to the MSPB under § 7511(a)(1)(A). 3 Ms. Sankey’s
position as a Program Support Assistant was for a “proba-
tionary . . . period” under subsection (i). 5 U.S.C.
§ 7511(a)(1)(A)(i); see Resp’t’s App. 2 (finding, by the
MSPB, that “[t]he undisputed evidence shows [Ms. San-
key] received a career-conditional appointment” subject to
a “probationary period”); see also Resp’t’s App. 8, 9, 12
(identifying her position as probationary in personnel
documents). She admits as much. See Resp’t’s App. 26
(checking the box “[y]es” in response to the question
“[w]ere you serving a probationary, trial, or initial service
period at the time of the action or decision you are appeal-
ing?” in submitting her appeal to the MSPB), 29 (checking
the box for “[t]ermination during probationary or initial
service period”). In addition, Ms. Sankey does not argue
either of the regulation’s “narrow exception[s] to the non-
reviewability of termination during the probationary
period” apply.
Pervez, 193 F.3d at 1375; see 5 C.F.R.
§ 315.806(b). See generally Pet’r’s Br. Rather than alleg-
ing termination based on partisan political reasons or
3 Ms. Sankey’s employment was “in the competitive
service,” 5 U.S.C. § 7511(a)(1)(A); see Resp’t’s App. 2, such
that § 7511(a)(1)(A) applies.
SANKEY v. MERIT SYS. PROT. BD. 5
marital status, she simply alleged “reprisal for submitting
a [r]eport . . . bearing witness to gross mismanage-
ment . . . by [her] Supervisor.” Resp’t’s App. 31; see, e.g.,
Pet’r’s Br. 1 (stating she “felt compelled to report what
[she] had witnessed,” including “gross [mis]management,
bullying, and passive aggressive behavior and a hostile
environment”).
Additionally, Ms. Sankey has not “completed [one]
year of current continuous service under other than a
temporary appointment limited to [one] year or less”
pursuant to subsection (ii). 5 U.S.C. § 7511(a)(1)(A)(ii).
Ms. Sankey began her employment on May 31, 2016, but
the VA terminated her on May 22, 2017. See Resp’t’s
App. 9. Therefore, she has not completed a year of con-
tinuous service. It is of no moment that she was “termi-
nated eight days shy of being a permanent employee,”
Pet’r’s Br. 1, because Ms. Sankey has not met the stat-
ute’s jurisdictional one-year requirement. Although we
liberally construe a pro se party’s pleadings, see, e.g., Durr
v. Nicholson,
400 F.3d 1375, 1380 (Fed. Cir. 2005), we
“may not . . . take a liberal view of that jurisdictional
requirement and set a different rule for pro se litigants
only,” Kelley v. Sec’y, U.S. Dep’t of Labor,
812 F.2d 1378,
1380 (Fed. Cir. 1987) (italics omitted).
CONCLUSION
We have considered Ms. Sankey’s remaining argu-
ments and find them unpersuasive. Accordingly, the
Final Decision of the Merit Systems Protection Board is
AFFIRMED
COSTS
No costs.
