Kelley v. Merit Systems Protection Board ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TINA M. KELLEY (NOW KNOWN AS TINA M.
DEQUIN),
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2009-3250
__________________________
Petition for review of the Merit Systems Protection
Board in CH0752090405-I-1.
___________________________
Decided: June 10, 2010
___________________________
TINA M. DEQUIN, of Plymouth, Michigan, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
KELLEY v. MSPB 2
Before BRYSON, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
The appellant, Tina M. Dequin (formerly known as
Tina M. Kelley), challenges the final decision of the Merit
Systems Protection Board dismissing her appeal for lack
of jurisdiction. We affirm.
BACKGROUND
On March 18, 2007, Ms. Dequin received a temporary
appointment, not to exceed April 17, 2008, to an excepted
service position as Social Worker with the Department of
Veterans Affairs. The Standard Form 50 (SF-50) docu-
menting her appointment stated that the appointment
was “subject to completion of [a] one-year initial proba-
tionary/trial/ period” beginning March 18, 2007. It fur-
ther stated that she had no creditable military service
and was not eligible for veterans’ preference status.
On April 18, 2008, Ms. Dequin’s temporary appoint-
ment was converted to a permanent excepted service
appointment. The SF-50 that documented that conver-
sion stated that the appointment was “subject to comple-
tion of [a] one-year initial probationary/trial/ period”
beginning April 18, 2008. Like the earlier SF-50, it also
indicated no military service or eligibility for veterans’
preference status.
On February 4, 2009, the agency issued Ms. Dequin a
notice of Termination During Probationary Period, effec-
tive March 4, 2009, for failure to function as an independ-
ent provider. Six days later, the agency issued a second
termination notice, which rescinded the original notice
3 KELLEY v. MSPB
and amended the effective date to February 10, 2009. Ms.
Dequin was terminated on that date.
Ms. Dequin appealed her termination to the Board.
In her appeal, she alleged that her termination was
improper because she had already successfully completed
the one-year probationary period required for her initial
appointment. The administrative judge who was as-
signed to the appeal issued an order advising Ms. Dequin
of the Board’s limited jurisdiction to hear appeals from
employees in the excepted service and ordering her to
demonstrate that the Board had jurisdiction over her
appeal. In response, Ms. Dequin argued that she was “not
serving a trial period on an initial appointment” and that
she therefore qualified as an employee under 5 U.S.C.
§ 7511(a)(1)(C)(i), with the attendant right to appeal from
an adverse action to the Board.
The administrative judge dismissed Ms. Dequin’s ap-
peal, holding that the Board lacked jurisdiction over the
matter because Ms. Dequin did not show that she quali-
fied as an “employee” under 5 U.S.C. § 7511. After the
full Board denied Ms. Dequin’s petition for review, Ms.
Dequin petitioned for review by this court.
DISCUSSION
The Board’s jurisdiction over appeals from adverse
agency actions is limited to matters for which a right to
appeal is granted by law, rule, or regulation. See 5 U.S.C.
§ 7701(a); Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1576
(Fed. Cir. 1995). The appellant in an adverse action
appeal bears the burden of establishing jurisdiction. See
5 C.F.R. § 1201.56(a)(2)(i); Maddox v. Merit Sys. Prot. Bd.,
759 F.2d 9, 10 (Fed. Cir. 1985).
KELLEY v. MSPB 4
Because Ms. Dequin’s appointment as a Social Worker
is covered by 38 U.S.C. § 7401(3), her appeal rights are
governed by title 5 of the United States Code. See 38
U.S.C. § 7403(f)(3). The Board therefore has jurisdiction
over this appeal only if Ms. Dequin qualifies as an “em-
ployee” under 5 U.S.C. § 7511(a)(1). For individuals
serving in the excepted service, 5 U.S.C. § 7511(a)(1)
defines “employee” in two ways:
(B) a preference eligible in the excepted service
who has completed 1 year of current continuous
service in the same or similar positions--
(i) in an Executive agency; or
(ii) in the United States Postal Service or
Postal Regulatory Commission; and
(C) an individual in the excepted service (other than a
preference eligible)--
(i) who is not serving a probationary or
trial period under an initial appointment
pending conversion to the competitive ser-
vice; or
(ii) who has completed 2 years of current
continuous service in the same or similar
positions in an Executive agency under
other than a temporary appointment lim-
ited to 2 years or less;
Ms. Dequin does not argue that she is a preference
eligible employee, as she has no creditable military ex-
perience or veterans’ preference status. Therefore, 5
U.S.C. § 7511(a)(1)(B) is inapplicable to her. With respect
to 5 U.S.C. § 7511(a)(1)(C), an individual qualifies as an
“employee” by satisfying the requirements of either clause
(1)(C)(i) or clause (1)(C)(ii) of subsection 7511(a). See Van
Wersch v. Department of Health & Human Services, 197
F.3d 1144, 1151 (Fed. Cir. 1999). Thus, Ms. Dequin must
5 KELLEY v. MSPB
demonstrate that at the time of her termination she was
either “not serving a probationary or trial period under an
initial appointment pending conversion to the competitive
service” or had “completed 2 years of current continuous
service in the same or similar positions in an Executive
agency under other than a temporary appointment lim-
ited to 2 years or less.” Id.; 5 U.S.C. § 7511(a)(1)(C).
Ms. Dequin does not contend that she meets the re-
quirements of clause (1)(C)(ii) of subsection 7511(a). As
the administrative judge noted, Ms. Dequin submitted no
evidence of prior federal service other than her 23 months
with the Department of Veterans Affairs, of which more
than half was served pursuant to a temporary one-year
appointment. Because Ms. Dequin did not complete two
years of continuous service under a permanent appoint-
ment, she lacks appeal rights to the Board under 5 U.S.C.
§ 7511(a)(1)(C)(ii). See Forest v. Merit Sys. Prot. Bd., 47
F.3d 409, 411 (Fed. Cir. 1995).
Ms. Dequin argues that she qualifies as an “employee”
under 5 U.S.C. § 7511(a)(1)(C)(i) because she was not
serving an “initial” appointment at the time of her termi-
nation. She interprets that statute as granting appeal
rights to any excepted service employee who is not among
those “serving a probationary or trial period under an
initial appointment pending conversion to the competitive
service.” This court, however, has interpreted 5 U.S.C. §
7511(a)(1)(C)(i) as granting appeal rights to excepted
service employees who are “serving under an initial
appointment pending conversion to the competitive ser-
vice, provided they are not serving a probationary or trial
period under such an appointment.” Barrett v. Soc. Sec.
Admin., 309 F.3d 781, 788 (Fed. Cir. 2002), quoting
Forest, 47 F.3d at 412. That is, in order to qualify as an
employee under 5 U.S.C. § 7511(a)(1)(C)(i), an individual
KELLEY v. MSPB 6
must be serving under an initial appointment pending
conversion to the competitive service and must not be
serving a probationary or trial period.
Under that interpretation of the statute, Ms. Dequin
fails to qualify as an “employee” with Board appeal rights.
Ms. Dequin was not serving an “initial” appointment to
the excepted service, and there is no evidence that her
appointment was “pending conversion to the competitive
service.” Moreover, it is undisputed that Ms. Dequin’s
second appointment was subject to her completion of a
one-year probationary period. As a result, we conclude
that the Board lacked jurisdiction to hear Ms. Dequin’s
appeal under 5 U.S.C. § 7511(a)(1)(C)(i) as that statute
has been interpreted by this court.
Ms. Dequin attempts to characterize her second ap-
pointment as a reinstatement within the meaning of 38
U.S.C. § 7403(d), but that argument is unavailing. First,
there is no evidence to support her apparent assertion
that her later position was a reinstatement to an original,
initial appointment. Moreover, Ms. Dequin has failed to
show either that her appointment is “pending conversion
to the competitive service” within the meaning of 5 U.S.C.
§ 7511(a)(1)(C)(i), or that she has at least two years of
continuous, permanent service within the meaning of 5
U.S.C. § 7511(a)(1)(C)(ii). The Board therefore lacks
jurisdiction over her appeal without regard to whether
her second appointment could be characterized as a
reinstatement.
Ms. Dequin’s assertions that she received good per-
formance evaluations and was unaware of any perceived
problems with her performance are likewise unavailing.
Those considerations go to the merits of Ms. Dequin’s
appeal, which neither the Board nor this court may
7 KELLEY v. MSPB
address because Congress has not given the Board juris-
diction to review agency actions against persons who do
not satisfy the statutory definition of “employee.”
AFFIRMED