Miller v. Merit Systems Protection Board , 208 F. App'x 902 ( 2006 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3185
DONNA MILLER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: December 6, 2006
___________________________
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and MOORE, Circuit
Judge.
PER CURIAM.
The petitioner, Donna Miller, seeks review of a final decision of the Merit
Systems Protection Board (“Board”) that dismissed, for lack of jurisdiction, her petition
for appeal regarding termination from her career-conditional appointment with the
Natural Resources Conservation Service. Miller v. Dep’t of Agric., No. AT-0353-06-
0028-I-1 (M.S.P.B. Nov. 28, 2005) (“Initial Decision”). The Initial Decision became final
when the Board declined to review it. Miller v. Dep’t of Agric., No. AT-0353-06-0028-I-1
(M.S.P.B. Feb. 24, 2006) (“Final Order”). We have considered Ms. Miller’s claims and
find them without merit. We therefore affirm the dismissal by the Board for lack of
jurisdiction.
BACKGROUND
The petitioner, Donna Miller, was given a career-conditional appointment with the
Natural Resources Conservation Service (“Agency”) as an office automation clerk. The
appointment was subject to completion of a one year probationary period. Before the
completion of the one year probationary period, the Agency decided to terminate
Ms. Miller’s appointment. The termination was based on Ms. Miller’s absences from
work and failure to accept her supervisor’s directives.
Ms. Miller originally appealed the Agency decision to the Equal Employment
Opportunity Commission (“EEOC”). Ms. Miller alleged the Agency violated her human
rights, improperly retaliated against her, and violated public policy. The EEOC decision
was unfavorable and Ms. Miller appealed to the Board alleging several errors by the
EEOC. She argued that the EEOC misinterpreted the Rehabilitation Act, misapplied
Tennessee statutes concerning communication with state officials, and failed to take
account of witness testimony. The administrative law judge (“ALJ”) at the Board treated
the filing as a challenge to the Agency’s failure to select and/or reinstate her. The ALJ
issued an acknowledgment order advising Ms. Miller that the Board lacked jurisdiction
over a non-selection and that the Board also lacked jurisdiction over a denial of
reinstatement absent a non-frivolous claim. The acknowledgement order further
advised Ms. Miller to demonstrate that her petition was within the Board’s jurisdiction.
Ms. Miller failed to respond to the acknowledgment order. The ALJ then dismissed for
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lack of jurisdiction because Ms. Miller was terminated during her probationary period
with the Agency. Initial Decision at 2. After the Board denied Ms. Miller’s petition for
review, she appealed to this court. Final Order at 2. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction to hear a claim is a question of law that this
court reviews de novo. Vesser v. Office of Personal Mgmt., 29 F.3d 600, 602 (Fed. Cir.
1994). The petitioner must prove jurisdiction by a preponderance of the evidence.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc). We
have stated that: “The jurisdiction of the Board is limited to those matters specifically
delineated by Congress or granted to it by way of regulatory authority exercised by the
OPM.” Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985).
On appeal to this court, Ms. Miller contends the Board failed to properly apply the
Rehabilitation Act, failed to consider her retaliation claim, did not apply Tennessee
statutes correctly, and did not acknowledge witness testimony. None of these
allegations establish jurisdiction.
The Board has jurisdiction of only those actions made appealable by statute or
regulation. 5 U.S.C. §§ 7512, 7513, 7701(a) (2006). Removal or termination of
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). The term “employee” is defined by 5 U.S.C. § 7511(a),
which provides:
(1) "employee" means--
(A) an individual in the competitive service--
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(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) who has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year
or less;
5 U.S.C. § 7511(a) (emphasis added). Ms. Miller’s career-conditional appointment was
subject to completion of a one year probationary period. She did not complete the one
year probationary period. Therefore, she does not qualify as an “employee” and is
excluded from the statutory appeals process under 5 U.S.C. §§ 7511-14. Stokes v.
Fed. Aviation Admin., 761 F.2d 682, 684 (Fed. Cir. 1985).
We have stated, however, that under 5 C.F.R. § 315.806(b), the Board will
“consider appeals from agency actions adverse to probationary employees when those
employees allege that those actions were the result of partisan political or marital status
discrimination.” Id. at 684-85. Since Ms. Miller has not alleged that the Agency’s action
was based on either partisan political or marital status reasons, the Board properly
dismissed her case for lack of jurisdiction.
Additionally, Ms. Miller’s retaliation and Rehabilitation Act claims do not confer
Board jurisdiction absent an allegation of marital status or partisan political
discrimination. See, e.g., Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir.
1991) (en banc) (holding discrimination allegations do not confer Board jurisdiction
absent an action that is otherwise appealable to the Board); Lizewski v. Dep’t of the
Army, 15 M.S.P.R. 417, 419 (1983) (holding the Board lacked jurisdiction to decide
whether probationer’s termination constituted physical handicap discrimination because
there was no alleged marital status or partisan political discrimination). Also, Ms. Miller
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has not pointed to any statute or regulation that establishes Board jurisdiction to decide
claims based on Tennessee state law.
Finally, the Board must provide notice to the appellant of her burden to
demonstrate jurisdiction. Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643-44 (Fed.
Cir. 1985). The Board has held that failure to inform an appellant of her jurisdictional
burden is “magnified” if she is pro se. Yost v. Dep’t of Health & Human Serv., 85
M.S.P.R. 273, 277 (2000). Thus, to fulfill the notice requirement, a pro se probationary
employee must be notified that 1) she must make a non-frivolous allegation of partisan
political or martial status discrimination, and that 2) she has the burden of providing
factual evidence to support her entitlement to a hearing. See Burgess, 758 F.2d at 643-
44 (holding that appellant must be notified of what is required to establish an appealable
jurisdictional issue and that appellant must produce factual evidence to support her
entitlement to a hearing); Johns v. Dep’t of Veteran’s Affairs, 83 M.S.P.R. 345, 348-49
(1999).
In this case, the Agency's motion to dismiss and attached removal notice gave
sufficient notice to Ms. Miller of the first requirement – that she must allege partisan
political or martial status discrimination. See Johns, 83 M.S.P.R. at 348 (“An AJ’s
failure to properly inform an appellant of the Board's jurisdictional requirements may not
be prejudicial where the appellant is put on notice by the Agency's motion to dismiss of
what he has to allege to establish jurisdiction.”). The motion to dismiss, however, failed
to give notice of the second requirement – her burden to come forward with evidence.
This failure was harmless because Ms. Miller could not have made a claim that invoked
the Board’s jurisdiction. As discussed above, Ms. Miller did not present a claim that
06-3185 5
invokes the Board jurisdiction. Moreover, there is no basis in the record that Ms. Miller
could establish a partisan political or martial status discrimination claim.
CONCLUSION
For the foregoing reasons, the Board properly dismissed Ms. Miller’s appeal for
lack of jurisdiction. We affirm the judgment of the Board.
No costs.
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