NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS G. BARR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2019-1273
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-315H-18-0485-I-1.
______________________
Decided: December 9, 2019
______________________
DOUGLAS G. BARR, Johnstown, PA, pro se.
SARA B. REARDEN, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN LEAVITT.
______________________
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
2 BARR v. MSPB
PER CURIAM.
Pro se appellant Douglas Barr appeals a decision of the
Merit Systems Protection Board dismissing his appeal for
lack of jurisdiction. Because we agree that the Board
lacked jurisdiction, we affirm.
I
Effective September 26, 2016, the Department of the
Air Force appointed Mr. Barr to a competitive-service, ca-
reer-conditional position as a Sheet Metal Mechanic sta-
tioned at Wright-Patterson Air Force Base in Ohio. The
appointment was subject to Mr. Barr’s satisfactory comple-
tion of a two-year probationary period. 1 Mr. Barr was ter-
minated during this probationary period for “negligence in
the performance of duties.” Supp. App. at 21.
Mr. Barr appealed to the Board. The Administrative
Judge concluded that the Board lacked jurisdiction over
Mr. Barr’s appeal because he was terminated during his
probationary period and failed to allege removal based on
marital status, partisan political reasons, or discrimina-
tion. See 5 C.F.R. §§ 315.804, 315.806(b), (d). Thus, the
Administrative Judge dismissed the appeal for lack of ju-
risdiction. This decision became the final decision of the
Board on October 2, 2018.
Mr. Barr appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
1 As of November 25, 2015, the probationary period for
civilian employees hired by the Department of Defense (of
which the Air Force is a part) became two years. See
10 U.S.C. § 1599e(d).
BARR v. MSPB 3
II
A
The Board’s determination that it lacks jurisdiction
over an appeal is a question of law that we review de novo.
Lee v. Merit Sys. Prot. Bd.,
857 F.3d 874, 875 (Fed. Cir.
2017). We review the findings of fact underlying the
Board’s jurisdictional decision for substantial evidence.
Bryant v. Merit Sys. Prot. Bd.,
878 F.3d 1320, 1325 (Fed.
Cir. 2017). The Board’s jurisdiction is limited to reviewing
actions designated as “appealable to the Board under any
law, rule or regulation.” 5 U.S.C. § 7701(a); see Monasteri
v. Merit Sys. Prot. Bd.,
232 F.3d 1376, 1378 (Fed. Cir. 2000)
(“This Court has repeatedly recognized that the Board’s ju-
risdiction is not plenary . . . .”). Mr. Barr must establish
the Board’s jurisdiction over his appeal by a preponderance
of the evidence. 5 C.F.R. § 1201.56(b)(2).
B
Mr. Barr admits that he was terminated during his
two-year probationary period. Probationary employees are
generally excluded from the category of federal employees
entitled to appeal to the Board. See 5 U.S.C.
§ 7511(a)(1)(A)(i). But, in select circumstances, probation-
ary employees can appeal terminations. Those circum-
stances are limited to allegations that the termination was
based on (1) partisan political reasons or marital status,
(2) pre-appointment conditions, or (3) other forms of dis-
crimination in conjunction with either of the first two
grounds. See 5 C.F.R. § 315.806; Pierce v. Gov’t Printing
Office,
70 F.3d 106, 108 (Fed. Cir. 1995).
Mr. Barr has not alleged, nor does the record suggest,
that he was terminated based on partisan political reasons,
marital status, or any other proscribed form of discrimina-
tion. Thus, there was no basis for the Board’s jurisdiction
on those grounds.
4 BARR v. MSPB
Mr. Barr primarily contends that the Board erred by
failing to consider the “improper procedures” used in his
removal, apparently referring to § 315.806(c). But that
provision only authorizes appeals from terminations based
on pre-appointment conditions. See 5 C.F.R. § 315.806(c)
(“A probationer whose termination is subject to § 315.805
[governing termination for pre-appointment conditions]
may appeal on the ground that his termination was not ef-
fected in accordance with the procedural requirements of
that section.” (emphasis added)); Younies v. Merit Sys. Prot.
Bd.,
662 F.3d 1215, 1218 (Fed. Cir. 2011). Mr. Barr’s dis-
missal was not based on pre-appointment conditions, but
on his unsatisfactory completion of an assignment during
his probationary period. His challenge to that action does
not fall within the narrow circumstances in which proba-
tionary employees can seek Board review.
Because the Board properly dismissed Mr. Barr’s ap-
peal for lack of jurisdiction, we affirm.
AFFIRMED
No costs.
