                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                     2006-3270



                                DENNIS R. MARTIN,

                                                           Petitioner,


                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.




      Dennis R. Martin, of Aspers, Pennsylvania, pro se.

      Jeffrey A. Gauger, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Joyce G. Friedman, Acting Associate General Counsel.


Appealed from: United States Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                        2006-3270

                                   DENNIS R. MARTIN,

                                                 Petitioner,

                                            v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.

                             ___________________________

                             DECIDED: January 16, 2007
                             ___________________________


Before BRYSON, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

                                        DECISION

          Dennis R. Martin appeals from a final decision of the Merit Systems Protection

Board, No. PH-0752-06-0127-I-1, dismissing his appeal for lack of jurisdiction.     We

affirm.

                                     BACKGROUND

          Mr. Martin was hired by the Department of the Army on July 17, 2005, as a

Heavy Mobile Equipment Repairer. He is a preference-eligible employee and was given

a Veterans Recruitment Appointment in the excepted service pursuant to the Jobs for

Veterans Act, Pub. L. No. 107-288, 116 Stat. 2033 (2002). He was removed from his
position on November 18, 2005, for misconduct. He subsequently filed a timely appeal

with the Board contesting his removal.

       The administrative judge assigned to the appeal twice ordered Mr. Martin to

make a showing sufficient to establish that the Board had jurisdiction over his appeal.

Finding Mr. Martin’s responses insufficient, the administrative judge dismissed his

appeal for lack of jurisdiction. When the Board declined Mr. Martin’s petition for review,

the administrative judge’s initial decision became the final decision of the Board. Mr.

Martin now seeks review by this court.

                                     DISCUSSION

       Whether the Board has jurisdiction is a question of law that this court reviews de

novo. Hayes v. U.S. Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir. 2004). The appellant

has the burden of proving, by a preponderance of the evidence, that the Board has

jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep't of Homeland

Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006).

       Federal civilian employees may generally appeal to the Board from adverse

agency actions, such as removals, if they meet the requirements set forth in 5 U.S.C.

§ 7511(a)(1). See 5 U.S.C. §§ 7513(d), 7512(1). For a preference eligible employee in

the excepted service, such as Mr. Martin, section 7511(a)(1)(B) requires the employee

to have completed one year of current continuous service in the same or a similar

position.   “Current continuous service” is defined by regulation as “a period of

employment or service immediately preceding an adverse action in the same or similar

positions without a break in Federal civilian employment of a workday.”          5 C.F.R.

§ 752.402(b).




2006-3270                                   2
      Before his removal, Mr. Martin was continuously employed in his position from

July 17 to November 18, 2005, a period of four months. Accordingly, the Board has

jurisdiction over his appeal only if he was continuously employed in a similar

government position for the eight months ending on the workday immediately prior to

July 17, 2005. The only allegations Mr. Martin advanced as to his prior government

service relate to his employment as a supply clerk from January 1984 to July 1986.

Even assuming that position was “similar” to the one from which he was removed, it is

clear that there was a break of more than one workday between Mr. Martin’s service in

the 1980s and his service in 2005. Mr. Martin’s allegations thus do not support a claim

of current continuous service in the same or similar position, and the Board therefore

had no jurisdiction to address the merits of the appeal. For that reason, we affirm the

Board’s decision dismissing Mr. Martin’s appeal.




2006-3270                                  3
