                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                       04-3452

                                EVELYN L. JOHNSON,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.



                           __________________________

                              DECIDED: April 6, 2005

                           __________________________



Before NEWMAN, LOURIE, and LINN, Circuit Judges.

PER CURIAM.

      Evelyn Johnson (“Johnson”) seeks review of the final decision of the Merit

Systems Protection Board (“Board”) dismissing for lack of jurisdiction her appeal of her

removal from the position of Human Resources Coordinator in the Staff Attorneys’

Office at the United States Court of Appeals for the Eleventh Circuit. See Johnson v.

Admin. Office of the U.S. Courts, No. AT-0752-03-0934-I-1 (M.S.P.B. July 12, 2004)

(“Final Decision”). Because the Board correctly concluded that Johnson did not come
within any of the categories covered by the definition of “employee” under 35 U.S.C.

§ 7511, we affirm the Board’s dismissal of her appeal for lack of jurisdiction.

                                     BACKGROUND

       Johnson began her employment at the United States Court of Appeals for the

Eleventh Circuit as a Court Secretary. She was subsequently promoted to the position

of Human Resources Coordinator in the Staff Attorneys’ Office. On June 20, 2003,

Johnson was notified of the termination of her position effective June 27, 2003. She

filed an appeal of her termination with the Board. Shortly thereafter, she informed the

Board that she wished to withdraw the appeal. Her appeal was dismissed on October

9, 2003. See Johnson v. Admin. Office of the U.S. Courts, No. AT-0752-03-0934-I-1

(M.S.P.B. October 9, 2003) (“Initial Decision”).

       On November 6, 2003, Johnson filed a petition for review of the Initial Decision

stating that she wished to reopen her case. The Board denied Johnson’s petition for

review, vacated the Initial Decision, and dismissed her appeal for lack of jurisdiction in

its Final Decision. The Board noted that its jurisdiction was limited to “employees” as

defined in 5 U.S.C. § 7511(a)(1) and that Johnson, as an employee of the Judicial

Branch of the government, did not meet the definition of “employee” under that section.

       We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).




04-3452                                      2
                                      DISCUSSION

                               A.     Standard of Review

      Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board's decision unless

it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; (2) obtained without procedures required by law, rule or regulation having

been followed; or (3) unsupported by substantial evidence. Chase-Baker v. Dep’t of

Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). Whether the Board has jurisdiction over an

appeal is a question of law, which we review de novo. Hayes v. U.S. Postal Serv., 390

F.3d 1373, 1376 (Fed. Cir. 2004).      The petitioner bears the burden of establishing

reversible error in reviewing a decision of an administrative agency such as the Board.

Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

                                     B.     Analysis

      The burden of establishing jurisdiction is placed by regulation on the appellant. 5

C.F.R. § 1201.56(a)(2)(i) (2003); McCormick v. Dep’t of the Air Force, 307 F.3d 1339,

1340 (Fed. Cir. 2002). The Board’s jurisdiction is strictly limited to that provided by

statute, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Forest v. Merit Sys. Prot. Bd., 47

F.3d 409, 410 (Fed. Cir. 1995). The Board has jurisdiction under 5 U.S.C. § 7513 to

hear appeals from removals. The Board’s jurisdiction, however, is limited, and “with

respect to adverse actions under section 7513, that jurisdiction only encompasses

appeals by ‘employees’ as defined in 5 U.S.C. § 7511(a)(1).” Hartman v. Merit Sys.

Prot. Bd., 77 F.3d 1378, 1380 (Fed. Cir. 1996).

      The Board correctly identified three ways to meet the statutory definition of

“employee” as set forth in 5 U.S.C. § 7511(a)(1).         Section 7511(a)(1) defines an




04-3452                                     3
employee, in relevant part, as: (1) an individual in the competitive service who has

fulfilled the requisite length of service; (2) a preference eligible individual in the excepted

service who has completed one year of current continuous service in the same or

similar position in an Executive agency, the United States Postal Service, or the Postal

Rate Commission; and (3) a nonpreference individual in the excepted service who has

completed two years of current continuous service in the same or similar positions in an

Executive agency under other than a temporary appointment limited to two years or

less. 5 U.S.C. § 7511(a)(1)(A)-(C) (2000).

       Johnson contends that the Board erred in defining and interpreting “competitive

service.” We find no error in the Board’s interpretation of “competitive service.” The

term “competitive service” is defined in 5 U.S.C. § 2102 as consisting of, inter alia, “civil

service positions not in the executive branch which are specifically included in the

competitive service by statute.” Id. § 2102(a)(2). The Petitioner has not cited and we

have not found any statute that places her position in the competitive service.

       Johnson also contends that the Board erred in interpreting “excepted service.”

Subject to a few exceptions not relevant here, the “excepted service” consists of all civil

service positions in an Executive agency.         An Executive agency is defined as an

“Executive department, a Government corporation, and an independent establishment.”

Id. § 105. The Board correctly concluded, and Johnson does not dispute, that she was

an employee of the Judicial Branch, and not an employee of an Executive agency of the

federal government. Accordingly, we agree with the Board that Johnson does not meet

the definition of “employee” on this basis.




04-3452                                       4
       Johnson finally contends that, because she alleged that her removal was based

on discrimination, her case is a “mixed case” within the Board’s jurisdiction under 5

U.S.C. § 7702.       For the purpose of determining the Board’s jurisdiction, the

discrimination claims must be made with respect to a personnel action that is otherwise

appealable to the Board. Id. § 7702(a); Hartman, 77 F.3d at 1381. Since the Board

lacks jurisdiction over personnel actions affecting employees of the Judicial Branch, the

Board lacks jurisdiction to hear Johnson’s discrimination claims as well.

       Accordingly, the Board did not err as a matter of law in concluding that it lacked

jurisdiction to consider Johnson’s petition.




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