Case: 23-2086 Document: 29 Page: 1 Filed: 12/08/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCIS YOMI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2086
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-16-0764-I-1.
______________________
Decided: December 8, 2023
______________________
FRANCIS YOMI, Santa Fe, NM, pro se.
ALLISON JANE BOYLE, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent.
______________________
Before MOORE, Chief Judge, CLEVENGER and STARK, Circuit
Judges.
PER CURIAM.
Case: 23-2086 Document: 29 Page: 2 Filed: 12/08/2023
2 YOMI v. MSPB
Francis Yomi appeals a decision of the Merit Systems
Protection Board (Board) dismissing his appeal for lack of
jurisdiction. For the following reasons, we affirm.
BACKGROUND
Mr. Yomi was hired to the competitive service position
of Physical Science Technician by the Department of the
Navy on July 7, 2014. S. Appx. 7–8. 1 His employment was
subject to a one-year probationary period. Id. at 76. On
August 28, 2014, management officials informed Mr. Yomi
he was being terminated for poor performance. Id. at 21.
In response, Mr. Yomi resigned, effective the same date.
Id.
Mr. Yomi filed an administrative appeal to the Board,
alleging the Navy breached his employment contract,
failed to provide him with a termination letter, and “forced
[him] to resign in lieu of terminating him.” Id. at 21–23.
The administrative judge (AJ) issued an initial decision
dismissing Mr. Yomi’s appeal for lack of jurisdiction be-
cause Mr. Yomi failed to non-frivolously allege he had qual-
ifying appeal rights as a probationary employee. Id. at 7–
10. Specifically, the AJ concluded Mr. Yomi was not an
“employee” with appeal rights under
5 U.S.C. § 7511(a)(1),
and he failed to make allegations that would qualify him
for the limited appeal rights for probationary employees
under
5 C.F.R. § 315.806.
Id. at 8–9. The AJ also con-
cluded, to the extent Mr. Yomi was alleging discrimination
or retaliation, the Board did not have jurisdiction because
he did not allege an otherwise appealable action.
Id.
Mr. Yomi filed a petition for review with the Board.
Id.
at 79–85. The Board denied Mr. Yomi’s petition for review
and affirmed the AJ’s initial decision.
Id. at 1–2. Mr. Yomi
1 “S. Appx.” refers to the supplemental appendix at-
tached to Respondent’s Informal Brief.
Case: 23-2086 Document: 29 Page: 3 Filed: 12/08/2023
YOMI v. MSPB 3
appeals. We have jurisdiction pursuant to
28 U.S.C.
§ 1295(a)(9) and
5 U.S.C. § 7703(b)(1)(A).
DISCUSSION
We must uphold the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5
U.S.C. § 7703(c). Whether the Board lacks jurisdiction is a
question of law we review de novo. Forest v. Merit Sys.
Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995).
To establish Board jurisdiction, the individual appeal-
ing a personnel action must qualify as an “employee” under
5 U.S.C. § 7511(a)(1). McCormick v. Dep’t of Air Force,
307
F.3d 1339, 1340–41 (Fed. Cir. 2002); see also
5 U.S.C.
§ 7513(d). As an individual in competitive service, Mr.
Yomi qualifies as an employee if he “is not serving a proba-
tionary or trial period under an initial appointment” or
“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)(1)(A). The Board properly con-
cluded Mr. Yomi does not meet this definition. At the time
of his resignation, Mr. Yomi was “serving a probationary
. . . period.” See
5 U.S.C. § 7511(a)(1)(A)(i). His employ-
ment ended on August 28, 2014—only seven weeks into his
one-year probationary period. S. Appx. 8, 21. He therefore
does not qualify as an “employee” with statutory appeal
rights under § 7511(a)(1)(A).
As a probationary employee, Mr. Yomi may only appeal
to the Board under
5 C.F.R. § 315.806. Mastriano v. Fed.
Aviation Admin.,
714 F.2d 1152, 1155 (Fed. Cir. 1983)
(“The only cognizable right of appeal by a probationary em-
ployee to the [Board] is contained in . . .
5 C.F.R.
§ 315.806.”). To appeal under this regulation, Mr. Yomi
must allege (1) his termination “was based on partisan po-
litical reasons or marital status”; or (2) the agency proposed
Case: 23-2086 Document: 29 Page: 4 Filed: 12/08/2023
4 YOMI v. MSPB
termination based at least in part on pre-appointment rea-
sons and failed to follow the procedural requirements of
5
C.F.R. § 315.805 (i.e., notice of the proposed adverse action,
an opportunity to respond, and notice of the adverse deci-
sion).
5 C.F.R. § 315.806.
Mr. Yomi does not allege he was terminated based on
partisan political reasons or marital status, or that the
Navy proposed his termination based on pre-appointment
reasons. See S. Appx. 21–23. Mr. Yomi has therefore not
established appeal rights under
5 C.F.R. § 315.806. Ac-
cordingly, the Board properly dismissed Mr. Yomi’s appeal
for lack of jurisdiction. 2
CONCLUSION
We have considered Mr. Yomi’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s dismissal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
2 Mr. Yomi argues the Navy terminated him in retal-
iation for protected whistleblowing disclosures. Appel-
lant’s Informal Opening Br., Attachment 1 at 1, 3–4. This
claim, however, does not confer independent Board juris-
diction absent an otherwise appealable action. See Cruz v.
Dep’t of the Navy,
934 F.2d 1240, 1245 (Fed. Cir. 1991) (en
banc). As discussed above, Mr. Yomi has failed to allege
any such appealable action. The Board properly concluded
that to the extent Mr. Yomi alleged a retaliation claim, it
lacked jurisdiction over such claim. S. Appx. 9.
