                 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
                                        04-3285

                                    CAROL L. IDE,

                                                             Petitioner,

                                           v.

                       SOCIAL SECURITY ADMINISTRATION,

                                                             Respondent.

                            ___________________________

                            DECIDED: May 13, 2005
                            ___________________________

Before CLEVENGER, RADER, and DYK, Circuit Judges.

PER CURIAM.

      The Merit Systems Protection Board (Board) decided that it had no jurisdiction to

hear Carol Ide’s appeal of a personnel action, because she was not preference-eligible

and had therefore not worked in her position long enough to acquire eligibility to appeal

any such action to the Board.     See Ide v. Soc. Sec. Admin., AT-0752-03-0379-I-1,

(M.S.P.B. Mar. 17, 2004).    Because Ms. Ide has made a non-frivolous allegation, this

court reverses and remands.

                                           I.

      Carol Ide began working for the Social Security Administration as a Co-Op

Student Trainee, an excepted service position, on July 15, 2001 Fourteen months later

she resigned that position. In January 2003, Ms. Ide appealed to the Board, asserting
that her resignation had been coerced. Ms. Ide used the Board’s standard form for

appeals, Optional Form 283. On that form Ms. Ide checked “yes” in answer to the

question “Are you a veteran and/or entitled to the employment rights of a veteran?”

Those employment rights include eligibility for certain preferences.         For example, a

preference eligible person becomes an “employee” entitled to Board review after one

year   of   employment;      otherwise,    two     years   are   required.       5     U.S.C.

§ 7511(a)(1)(B)(i)(2000). An administrative judge in an initial decision found that the

Board had no jurisdiction to hear Ms. Ide’s appeal because she “is not preference

eligible, [and] had less than two years of current continuous service at the time of her

resignation.” Ide v. Soc. Sec. Admin., AT-0752-03-0379-I-1 (M.S.P.B. Mar. 27, 2003).

       Ms. Ide petitioned for review of the administrative judge’s decision, asserting that

she was preference eligible and that she had twice submitted her DD214 Report of

Separation and SF15 preference eligibility forms to the Savannah, Georgia office of the

Social Security Administration.      Nevertheless, without addressing the question of

preference eligibility, the Board made its initial decision final on March 17, 2004.

                                             II.

       Ms. Ide appeals the Board’s final decision that she is not eligible for Board review

of her personnel appeal.     This court reviews without deference questions of Board

jurisdiction over a particular appeal. King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir.

1996). The petitioner establishes Board jurisdiction by making a non-frivolous allegation

of jurisdiction. Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687-88 (Fed. Cir. 1992);

Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002); Walley v. Dep’t

of Veterans Affairs, 279 F.3d 1010, 1018-19 (Fed. Cir. 2002).




04-3285                                      2
       The record shows that Ms. Ide did assert, on both her original appeal and in her

petition for review, that she is preference-eligible. The SF-50 (Notification of Personnel

Action) forms for both her appointment and her resignation appear to indicate that she

has veterans’ status. Directly contradicting this testimony, the Government argues that

Ms. Ide did not assert a veterans preference at all during the initial Board proceedings,

and has provided no evidence of eligibility. The record of this case and the findings of

the administrative judge are insufficient for us to determine whether the petitioner or the

Government is correct. Nevertheless, petitioner’s allegations are not frivolous, and are

thus sufficient to establish jurisdiction.   Accordingly, this court remands for further

proceedings on the merits.

       On remand the petitioner should be permitted an opportunity to produce the

DD214, SF15, and military discharge documents to show her status. The Board should

adjudicate the merits of Ms. Ide’s case, including her preference eligibility. The burden

on Ms. Ide is to establish her claim by a preponderance of the evidence. Dick, 290 F.3d

at 1364.




04-3285                                      3
