Wilson v. Merit Systems Protection Board , 484 F. App'x 561 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
AMY L. WILSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3092
__________________________
Petition for review of the Merit Systems Protection
Board in DA0752110276-I-1.
___________________________
Decided: October 10, 2012
___________________________
AMY L. WILSON, of Bastrop, Texas, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, DC, for respondent. With her on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
WILSON v. MSPB 2
Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Petitioner Amy L. Wilson seeks review of an order of
the Merit Systems Protection Board dismissing her ap-
peal from the decision of the Department of the Treasury
to terminate her. We affirm.
BACKGROUND
On February 22, 2010, Ms. Wilson received a career-
conditional appointment to the competitive service as a
“full time seasonal” Tax Examining Technician with a
Treasury Department office in Austin, Texas. The ap-
pointment was subject to a one-year probationary period.
During a probationary period, an appointee in the com-
petitive service has no statutory right, and very limited
regulatory rights, to appeal any termination decision. See
5 C.F.R. §§ 315.805-.806.
On November 29, 2010, Ms. Wilson was notified that
she was being terminated from her position because she
was “not fully successful in all of the required Critical Job
elements” and because she had failed to follow managerial
directives. The agency terminated Ms. Wilson on January
22, 2011, before the expiration of her one-year probation-
ary period.
Ms. Wilson sought to appeal her termination to the
Merit Systems Protection Board. In her appeal, she
argued that her removal was improper for a number of
reasons, including that it was the result of harmful proce-
dural error and discrimination, and that it was otherwise
not in accordance with law. The administrative judge
3 WILSON v. MSPB
who was assigned to the case noted a potential jurisdic-
tional problem with the appeal because Ms. Wilson failed
to allege that her termination was based on partisan
political reasons or marital status discrimination—the
only two types of in-service conduct that can give rise to
Board review of a probationary employee’s removal. 5
C.F.R. § 315.806(b). The administrative judge permitted
the parties to address the jurisdictional issue and to
supplement the record, and the parties did so.
The administrative judge subsequently dismissed the
appeal for lack of jurisdiction because the termination
occurred during a probationary period and was not based
on partisan political reasons or Ms. Wilson’s marital
status. Ms. Wilson appealed the removal decision to the
full Board. The Board denied review, concluding that Ms.
Wilson’s claims of political partisanship and marital
status discrimination were untimely and were not sup-
ported by any nonfrivolous factual allegations. Ms. Wil-
son now seeks review from this court.
DISCUSSION
Career-conditional appointments with federal agen-
cies are subject to a one-year probationary period during
which an employee may be terminated for unsatisfactory
performance or conduct. See 5 C.F.R. § 315.804(a).
Moreover, an employee who is terminated during a proba-
tionary period has only limited rights to appeal that
decision to the Board; the employee may appeal the
termination only if it was “based on partisan political
reasons or marital status,” see id. § 315.806(b), or was not
effected in accordance with certain procedural require-
ments, see id. § 315.806(c).
WILSON v. MSPB 4
On appeal to this court, Ms. Wilson does not contend
that her termination was due to partisan political reasons
or her marital status. Instead, she argues that her ter-
mination violated a collective bargaining agreement
between the agency and the National Treasury Employees
Union. An allegation of conflict with a collective bargain-
ing agreement, however, does not give the Board jurisdic-
tion to review a probationer’s removal. See Smith v. Merit
Sys. Prot. Bd., 813 F.2d 1216, 1218-19 (Fed. Cir. 1987)
(“Ordinarily a collective bargaining agreement cannot
confer jurisdiction on the board if the employee would not
otherwise have the right to appeal to the board.”); see also
Vernon v. Dep’t of the Treasury, 58 F. App’x 472, 473-74
(Fed. Cir. 2003) (“The Board correctly concluded that it
had no jurisdiction to reach the merits of any of [appel-
lant’s] claims, including . . . the claims based on collective
bargaining agreements.”). Therefore, regardless of
whether the agency complied with the grievance proce-
dures in the collective bargaining agreement with Ms.
Wilson’s union—an issue we do not address—the Board
properly dismissed her appeal because it lacked jurisdic-
tion to consider it.
The short of the matter is that Ms. Wilson was termi-
nated because the agency concluded that her “conduct
during [the probationary] period fail[ed] to demonstrate
h[er] fitness . . . for continued employment.” 5 C.F.R. §
315.804(a). A probationer who is removed for that reason
has no right of appeal to the Board. Id. § 315.806(a). The
Board therefore correctly held that it lacked jurisdiction
over Ms. Wilson’s appeal. See Carrow v. Merit Sys. Prot.
Bd., 626 F.3d 1348, 1352 (Fed. Cir. 2010).
No costs.
AFFIRMED