                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                        06-3185


                                   DONNA MILLER,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.


                           ___________________________

                            DECIDED: December 6, 2006
                           ___________________________



Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and MOORE, Circuit
Judge.

PER CURIAM.


      The petitioner, Donna Miller, seeks review of a final decision of the Merit

Systems Protection Board (“Board”) that dismissed, for lack of jurisdiction, her petition

for appeal regarding termination from her career-conditional appointment with the

Natural Resources Conservation Service. Miller v. Dep’t of Agric., No. AT-0353-06-

0028-I-1 (M.S.P.B. Nov. 28, 2005) (“Initial Decision”). The Initial Decision became final

when the Board declined to review it. Miller v. Dep’t of Agric., No. AT-0353-06-0028-I-1
(M.S.P.B. Feb. 24, 2006) (“Final Order”). We have considered Ms. Miller’s claims and

find them without merit. We therefore affirm the dismissal by the Board for lack of

jurisdiction.

                                     BACKGROUND

       The petitioner, Donna Miller, was given a career-conditional appointment with the

Natural Resources Conservation Service (“Agency”) as an office automation clerk. The

appointment was subject to completion of a one year probationary period. Before the

completion of the one year probationary period, the Agency decided to terminate

Ms. Miller’s appointment. The termination was based on Ms. Miller’s absences from

work and failure to accept her supervisor’s directives.

       Ms. Miller originally appealed the Agency decision to the Equal Employment

Opportunity Commission (“EEOC”). Ms. Miller alleged the Agency violated her human

rights, improperly retaliated against her, and violated public policy. The EEOC decision

was unfavorable and Ms. Miller appealed to the Board alleging several errors by the

EEOC. She argued that the EEOC misinterpreted the Rehabilitation Act, misapplied

Tennessee statutes concerning communication with state officials, and failed to take

account of witness testimony. The administrative law judge (“ALJ”) at the Board treated

the filing as a challenge to the Agency’s failure to select and/or reinstate her. The ALJ

issued an acknowledgment order advising Ms. Miller that the Board lacked jurisdiction

over a non-selection and that the Board also lacked jurisdiction over a denial of

reinstatement absent a non-frivolous claim.        The acknowledgement order further

advised Ms. Miller to demonstrate that her petition was within the Board’s jurisdiction.

Ms. Miller failed to respond to the acknowledgment order. The ALJ then dismissed for




06-3185                                     2
lack of jurisdiction because Ms. Miller was terminated during her probationary period

with the Agency. Initial Decision at 2. After the Board denied Ms. Miller’s petition for

review, she appealed to this court. Final Order at 2. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

                                        DISCUSSION

         Whether the Board has jurisdiction to hear a claim is a question of law that this

court reviews de novo. Vesser v. Office of Personal Mgmt., 29 F.3d 600, 602 (Fed. Cir.

1994).     The petitioner must prove jurisdiction by a preponderance of the evidence.

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc). We

have stated that: “The jurisdiction of the Board is limited to those matters specifically

delineated by Congress or granted to it by way of regulatory authority exercised by the

OPM.” Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985).

         On appeal to this court, Ms. Miller contends the Board failed to properly apply the

Rehabilitation Act, failed to consider her retaliation claim, did not apply Tennessee

statutes correctly, and did not acknowledge witness testimony.             None of these

allegations establish jurisdiction.

         The Board has jurisdiction of only those actions made appealable by statute or

regulation.    5 U.S.C. §§ 7512, 7513, 7701(a) (2006).           Removal or termination of

employment “is an appealable action where the individual qualifies as an ‘employee’ at

the time of her removal by the agency.” McCormick v. Dep’t of the Air Force, 307 F.3d

1339, 1341 (Fed. Cir. 2002). The term “employee” is defined by 5 U.S.C. § 7511(a),

which provides:

         (1) "employee" means--
                (A) an individual in the competitive service--



06-3185                                        3
                     (i) who is not serving a probationary or trial period under an
                     initial appointment; or
                     (ii) who has completed 1 year of current continuous service
                     under other than a temporary appointment limited to 1 year
                     or less;

5 U.S.C. § 7511(a) (emphasis added). Ms. Miller’s career-conditional appointment was

subject to completion of a one year probationary period. She did not complete the one

year probationary period. Therefore, she does not qualify as an “employee” and is

excluded from the statutory appeals process under 5 U.S.C. §§ 7511-14. Stokes v.

Fed. Aviation Admin., 761 F.2d 682, 684 (Fed. Cir. 1985).

       We have stated, however, that under 5 C.F.R. § 315.806(b), the Board will

“consider appeals from agency actions adverse to probationary employees when those

employees allege that those actions were the result of partisan political or marital status

discrimination.” Id. at 684-85. Since Ms. Miller has not alleged that the Agency’s action

was based on either partisan political or marital status reasons, the Board properly

dismissed her case for lack of jurisdiction.

       Additionally, Ms. Miller’s retaliation and Rehabilitation Act claims do not confer

Board jurisdiction absent an allegation of marital status or partisan political

discrimination. See, e.g., Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir.

1991) (en banc) (holding discrimination allegations do not confer Board jurisdiction

absent an action that is otherwise appealable to the Board); Lizewski v. Dep’t of the

Army, 15 M.S.P.R. 417, 419 (1983) (holding the Board lacked jurisdiction to decide

whether probationer’s termination constituted physical handicap discrimination because

there was no alleged marital status or partisan political discrimination). Also, Ms. Miller




06-3185                                        4
has not pointed to any statute or regulation that establishes Board jurisdiction to decide

claims based on Tennessee state law.

       Finally, the Board must provide notice to the appellant of her burden to

demonstrate jurisdiction. Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643-44 (Fed.

Cir. 1985). The Board has held that failure to inform an appellant of her jurisdictional

burden is “magnified” if she is pro se. Yost v. Dep’t of Health & Human Serv., 85

M.S.P.R. 273, 277 (2000). Thus, to fulfill the notice requirement, a pro se probationary

employee must be notified that 1) she must make a non-frivolous allegation of partisan

political or martial status discrimination, and that 2) she has the burden of providing

factual evidence to support her entitlement to a hearing. See Burgess, 758 F.2d at 643-

44 (holding that appellant must be notified of what is required to establish an appealable

jurisdictional issue and that appellant must produce factual evidence to support her

entitlement to a hearing); Johns v. Dep’t of Veteran’s Affairs, 83 M.S.P.R. 345, 348-49

(1999).

       In this case, the Agency's motion to dismiss and attached removal notice gave

sufficient notice to Ms. Miller of the first requirement – that she must allege partisan

political or martial status discrimination.   See Johns, 83 M.S.P.R. at 348 (“An AJ’s

failure to properly inform an appellant of the Board's jurisdictional requirements may not

be prejudicial where the appellant is put on notice by the Agency's motion to dismiss of

what he has to allege to establish jurisdiction.”). The motion to dismiss, however, failed

to give notice of the second requirement – her burden to come forward with evidence.

This failure was harmless because Ms. Miller could not have made a claim that invoked

the Board’s jurisdiction. As discussed above, Ms. Miller did not present a claim that




06-3185                                       5
invokes the Board jurisdiction. Moreover, there is no basis in the record that Ms. Miller

could establish a partisan political or martial status discrimination claim.

                                      CONCLUSION

       For the foregoing reasons, the Board properly dismissed Ms. Miller’s appeal for

lack of jurisdiction. We affirm the judgment of the Board.

       No costs.




06-3185                                       6
