                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMAKA BATTS,                                   DOCKET NUMBER
                         Appellant,                  DC-315H-16-0334-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: July 20, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Jamaka Batts, Newport News, Virginia, pro se.

           Jason Snyder, Esquire, Ft. Lee, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her probationary termination appeal for lack of jurisdiction. Generally,
     we grant petitions such as this one only in the following circumstances:           the
     initial decision contains erroneous findings of material fact; the initial decision is
     based on an erroneous interpretation of statute or regulation or the erroneous

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

     application of the law to the facts of the case; the administrative judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
                                     BACKGROUND
¶2        On February 6, 2016, the appellant filed an appeal alleging that the agency
     wrongfully terminated her from her competitive-service position during her
     probationary period. Initial Appeal File (IAF), Tab 1 at 2, 5, 7, Tab 4 at 14. The
     administrative judge advised the appellant that, as a probationary employee, the
     Board might not have jurisdiction over her termination. IAF, Tab 2 at 3-4. She
     ordered the appellant to file evidence or argument addressing the jurisdictional
     issue. Id. at 4-5.   In addition, the agency moved to dismiss the appeal on the
     basis that the Board did not have jurisdiction because the appellant was a
     probationary employee. IAF, Tab 4 at 7-8. The administrative judge provided
     notice to the appellant that she could respond to the agency’s motion.        IAF,
     Tab 5. The appellant did not respond to either the administrative judge’s order or
     the agency’s motion. The administrative judge dismissed the appeal for lack of
     jurisdiction and denied the request for a hearing, finding that the appellant was a
     probationary employee with no statutory right of appeal to the Board and had not
     nonfrivolously alleged any cause of action that would otherwise enable the Board
     to exercise jurisdiction over her claim. IAF, Tab 1 at 3, Tab 6, Initial Decision
                                                                                        3

     (ID) at 2-4. The appellant has filed a petition for review to which the agency has
     not responded. Petition for Review (PFR) File, Tab 3 at 1.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶3        The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.         Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).            The Board’s statutory
     jurisdiction over a removal from the competitive service is limited to the removal
     of an individual who is not serving a probationary or trial period under an initial
     appointment or who has completed 1 year of current continuous service under
     other than a temporary appointment limited to 1 year or less.           See 5 U.S.C.
     § 7511(a)(1)(A); McCormick v. Department of the Air Force, 307 F.3d 1339,
     1341 (Fed. Cir. 2002).         The appellant bears the burden of proving by
     preponderant evidence that the Board has jurisdiction over her appeal. 5 C.F.R.
     §1201.56(b)(2)(i)(A).
¶4        The appellant conceded that she was a probationary employee with a total
     of 11 months of Federal service. IAF, Tab 1 at 2, 5. Therefore, we agree with the
     administrative judge that the Board does not have statutory jurisdiction over the
     appeal.    ID at 3.       Nonetheless, under Office of Personnel Management
     regulations, the Board may exercise jurisdiction over a probationary termination
     if the employee makes nonfrivolous allegations that her termination was based on
     discrimination due to partisan political reasons or marital status or that her
     termination was based on pre-appointment reasons and was not effected in
     accordance with the procedural requirements of 5 C.F.R. § 315.805. See 5 C.F.R.
     §   315.806;   see      also   West   v.   Department    of    Health    &   Human
     Services, 122 M.S.P.R. 434, ¶¶ 7-8 (2015); Jafri v. Department of the
     Treasury, 68 M.S.P.R. 216, 219-21 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996)
     (Table); Taylor v. Environmental Protection Agency, 61 M.S.P.R. 188, 192
     (1994).   The appellant did not advance any claims that would give the Board
                                                                                  4

regulatory jurisdiction over her appeal. IAF, Tab 1; ID at 3. Her petition for
review also did not address the Board’s lack of jurisdiction. PFR File, Tab 3;
ID at 2.      Because the appellant did not make nonfrivolous allegations of
circumstances that would bring her appeal within the Board’s jurisdiction, the
administrative judge properly dismissed the appeal without a hearing. Graham v.
Department of Justice, 50 M.S.P.R. 285, 288 (1991).

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                           United States Court of Appeals
                               for the Federal Circuit
                             717 Madison Place, N.W.
                              Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012).     You may read this law and other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.         Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
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      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
