Webb v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3317
KATHY P. WEBB,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Kathy P. Webb, of Pine Bluff, Arizona, pro se.
Joyce G. Friedman, Acting Associate General Counsel for Litigation, Office of the
General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent.
With her on the brief was B. Chad Bungard, General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3317
KATHY P. WEBB,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752080159-I-1.
___________________________
DECIDED: January 13, 2009
___________________________
Before RADER, LINN, and DYK, Circuit Judges.
PER CURIAM.
Kathy P. Webb (“Webb”) petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) dismissing her appeal for lack of jurisdiction. Webb
v. Dep’t of Army, DA0752080159-I-1 (M.S.P.B. July 3, 2008) (“Final Decision”). We
affirm.
BACKGROUND
Webb was employed as a Security Guard by the Department of the Army (“the
agency”) as a term employee at the Pine Bluff Arsenal in Arkansas. She received an
initial one-year appointment in August 2003. On August 1, 2005, documents show that
the agency extended Webb’s most recent term appointment to a period not to exceed
August 3, 2006. On July 12, 2006, the agency advised Webb that her term appointment
would not be extended and would therefore expire on August 3, 2006. The agency
explained that it could not continue to employ her because she failed to meet a
condition of employment, related to a medical condition.
On December 28, 2007, Webb appealed the agency’s action to the Board. She
argued that she was hired for a 4-year term and that she had been terminated after 3
years, before her appointment’s expiration, due to a medical condition. The
Administrative Judge (“AJ”) dismissed Webb’s appeal without holding a hearing. The
AJ found that all of the submitted documents supported the agency’s assertions that
Webb’s term employment was not for a 4-year term and had expired August 3, 2006.
Webb v. Dep’t of Army, DA0752080159-I-1, slip op. at 3 (M.S.P.B. Feb. 22, 2008)
(“Initial Decision”). The AJ stated that though Webb had the right to appeal adverse
actions to the Board, jurisdiction over the end of a term appointment was specifically
excluded from such actions under 5 C.F.R. § 752.401(b)(11). Id. at 4. As Webb’s
termination was “not a removal during the term of her appointment, but rather a release
at the predetermined end of the term,” the AJ stated that it was not an adverse action
within the Board’s jurisdiction. Id. (emphasis in original).
The Initial Decision became the Final Decision of the Board when the Board
denied Webb’s petition for review. Final Decision, slip op. at 1-2. Webb then filed a
timely petition for review by this court. We have jurisdiction over Webb’s petition
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless we
find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
2008-3317 2
accordance with law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial evidence. See
Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which
this Court reviews de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.
Cir. 2008). The appellant has the burden of establishing the Board’s jurisdiction. 5
C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed.
Cir. 2006) (en banc). An appellant is not entitled to a jurisdictional hearing absent non-
frivolous allegations supporting jurisdiction. Garcia, 437 F.3d at 1325.
Though the Board has jurisdiction over adverse actions by the agency, 5 C.F.R.
§ 752.401(b)(11) specifically excludes from the definition of an adverse action a
“[t]ermination of appointment on the expiration date specified as a basic condition of
employment at the time the appointment was made.” Here, the evidence presented to
the Board to support jurisdiction uniformly showed that Webb’s term appointment ended
August 3, 2006. The Board was not required to hold the hearing Webb requested
because she did not make a non-frivolous allegation of jurisdiction. Webb’s statement
that the documentary evidence was “fake,” without supplying any evidence as to the
falsity is not a non-frivolous allegation supporting jurisdiction. See Dorrall v. Dep’t of
Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled in part on other grounds by
Garcia, 437 F.3d at 1343. Thus, there is no basis for Webb’s appeal. The Board
correctly found that it lacks jurisdiction over her dismissal at the end of a term
appointment, which was not an adverse action pursuant to 5 C.F.R. § 752.401(b)(11).
2008-3317 3
In addition, Webb argues that the Board’s decision failed to consider her
discrimination charges. The Board has no jurisdiction to consider discrimination when it
is unaccompanied by an appealable adverse action over which the Board has
jurisdiction. Garcia, 437 F.3d at 1342-43; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245-
46 (Fed. Cir. 1991) (en banc).
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
2008-3317 4