                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2009-3075

                                 EARL T. BARNETT,

                                                     Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent.


      Earl T. Barnett, of Morgantown, West Virginia, pro se.

      Bernard E. Doyle, Attorney-Advisor, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Keisha Dawn Bell, Deputy General
Counsel.

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                         NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                        2009-3075


                                    EARL T. BARNETT,

                                                              Petitioner,

                                             v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.


    Petition for review of the Merit Systems Protection Board in PH315H080391-I-1.



                              DECIDED: August 7, 2009



Before SCHALL, PLAGER, and MOORE, Circuit Judges.

PER CURIAM.

                                       DECISION

      Earl T. Barnett petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Barnett v.

v. Dep’t of Justice, No. PH-315H-08-0391-I-1 (Merit Sys. Prot. Bd. Oct. 7, 2008) (“Final

Decision”). We affirm.
                                     DISCUSSION

                                             I.

      In July of 1976, Mr. Barnett, who is a preference-eligible veteran, received a

career-conditional appointment in the competitive service as a Cook Helper at the

Federal Correctional Institution in Morgantown, West Virginia.      In this position, Mr.

Barnett was employed by the Bureau of Prisons, a component of the Department of

Justice (“agency”). The appointment was subject to a one-year probationary period. In

May of 1997, prior to the end of the probationary period, Mr. Barnett resigned from his

position. On October 30, 1977, after approximately a five-month break in service, Mr.

Barnett was reinstated to a career-conditional position, again as a Cook Helper.

Subsequently, on March 12, 1978, the agency promoted Mr. Barnett to the position of

Cook Foreman. Mr. Barnett resigned again, however, on August 19, 1978. Almost

thirty years later, on April 15, 2008, he appealed to the Board, claiming that his August

19, 1978 resignation had been involuntary.

      On July 18, 2008, the administrative judge (“AJ”) to whom the appeal was

assigned issued an initial decision, dismissing Mr. Barnett’s appeal for lack of

jurisdiction. Barnett v. Dep’t of Justice, No. PH-315H-08-0391-I-1 (Merit Sys. Prot. Bd.

July 18, 2008) (“Initial Decision”). The AJ found that, according to the regulations in

effect at the time of Mr. Barnett’s resignation, he was not an employee with appeal

rights and that the Board thus did not have jurisdiction over his involuntary resignation

claim. Id. slip op. at 4-6. Specifically, the AJ determined that, in order to establish

Board jurisdiction, Mr. Barnett was required to show that, at the time of his resignation,

he was not serving a probationary period or that he had completed one year of current




2009-3075                                    2
continuous service. The AJ found that Mr. Barnett was still a probationary employee

when he resigned and that he had not completed one year of current continuous

service. The AJ took into account the fact that Mr. Barnett had been promoted after the

agency reinstated him and that his total service, including his service as a Cook Helper

prior to his first resignation, equated to more than one year.        The AJ concluded,

however, that being promoted, by itself, did not remove Mr. Barnett from probationary

status and that his prior service could not be considered because it was completed

more than thirty days before his subsequent reinstatement.          Id. at 6-8.   The AJ

determined that, in view of Mr. Barnett’s status, the Board could only exercise

jurisdiction over his involuntary resignation claim in limited circumstances, which did not

exist. Id. at 8-9. Finally, the AJ noted, but declined to address, the question of the

timeliness of Mr. Barnett’s appeal. Id. at 11. The Initial Decision became the final

decision of the Board on October 7, 2008, when the Board denied Mr. Barnett’s petition

for review. Final Decision. This appeal followed. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                            II.

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be (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. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).             “Whether the board had

jurisdiction to adjudicate a case is a question of law, which we review de novo.” Forest




2009-3075                                   3
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). The petitioner bears the

burden of establishing jurisdiction with the Board. McCormick v. Dep’t of the Air Force,

307 F.3d 1339, 1340 (Fed. Cir. 2002).

       On appeal, Mr. Barnett contends that the Board erred in dismissing his appeal for

lack of jurisdiction. He argues first that he was not a probationary employee when he

resigned from his position as Cook Foreman in August 1978. According to Mr. Barnett,

his status as a non-probationary employee is evidenced by a document confirming his

reinstatement, which does not indicate that he was subject to completion of a one-year

probationary period. As further evidence of his non-probationary status, he points to the

fact that he was promoted to the position of Cook Foreman after he was reinstated.

Second, Mr. Barnett argues that the Board incorrectly failed to consider his total service

at the agency, including both the time spent as a Cook Helper prior to his first

resignation and the time after his reinstatement. Mr. Barnett urges that, if the Board had

considered his total service, it would have found that he had completed the requisite

one-year probationary period and that he had one year of current continuous service,

thus entitling him to appeal rights.

                                            III.

           Because, at the time of his resignation, Mr. Barnett was not an employee with

the right of appeal to the Board, we affirm the Board’s decision dismissing his appeal. 1

When Mr. Barnett resigned from his position in August 1978, the pertinent regulations

       1
             As pointed out by the government, the Board apparently addressed Mr.
Barnett’s employment status under the current statute, 5 U.S.C. § 7511(a)(1)(A), rather
than the law in effect when he resigned. Although quite similar, there are minor
differences between the law in place when Mr. Barnett resigned and present law.
These differences do not impact this appeal, however. Thus, any error by the Board in
this regard was harmless.

2009-3075                                    4
provided Board appeal rights to any career-conditional employee serving in a

competitive position who was not serving a probationary period and to any employee

serving in a competitive position who had completed one year of current continuous

employment. See 5 C.F.R. § 752.201(a)(1) (1978) (emphasis added). At the time of his

resignation, Mr. Barnett fit into neither category.

       As the Board found, Mr. Barnett was still subject to a probationary period when

he resigned in August 1978. First, it is undisputed that Mr. Barnett’s initial service from

July 1976 to May 1977 did not grant him appeal rights to the Board, as he did not

complete the requisite one-year probationary period. Likewise, Mr. Barnett was still

serving a probationary period when he again resigned after he was reinstated. While

Mr. Barnett correctly notes that the document reinstating him did not indicate that he

was subject to completion of a one-year probation period, it is important that this same

document also specifies that he was reinstated pursuant to “REG 315.401”—i.e., 5

C.F.R. § 315.401. Significantly, employees reinstated under section 315.401 were still

required to complete a probationary period unless the employee had completed the

probationary period during the time of service that afforded the current basis for

reinstatement—in this case, Mr. Barnett’s first term of service from July 1976 to May

1977. See 5 C.F.R. § 315.801(a)(2) (1978). As mentioned above, however, Mr. Barnett

completed neither the required one-year probationary period during his first term of

service nor a one-year probationary period after his reinstatement. Moreover, the fact

that the agency promoted Mr. Barnett to the position of Cook Foreman did not relieve

him from completing the necessary one-year probationary period during his second

term of service or otherwise vest him with appeal rights to the Board. See 5 C.F.R. §




2009-3075                                     5
315.801(b)(2) (1978) (requiring a person who is promoted, before completing a

probationary period, “to complete the probationary period in the new position”).

       Contrary to Mr. Barnett’s suggestion, even though his total employment in

Morgantown equaled approximately seventeen months, his two terms of employment

cannot be considered in concert for purposes of fulfilling the one-year probationary

period—i.e., the first term of service cannot be “tacked” onto his second term. Rather,

his prior service in a competitive service position can be credited, i.e., “tacked,” towards

the completion of a later probationary period only if the prior service was completed with

no more than one break in service of less than thirty calendar days. See 5 C.F.R.

§ 315.802(b) (1978); Appeal of Cordington, 1 M.S.P.R. 335, 337 (1979) (noting that,

under 5 C.F.R. § 315.802(b) which was in force when Mr. Barnett resigned, prior service

could only be credited toward completion of a probationary period if “there was no more

than one break of less than 30 days”), vacated as moot, Cordington v. Dep’t of Justice,

1 M.S.P.R. 333 (1980); see also Ellefson v. Dep’t of the Army, 98 M.S.P.R. 191, 198

(2005) (acknowledging the same requirement under current regulations). Mr. Barnett’s

break in service, however, was approximately five months and, therefore, his prior

service from July 1976 to May 1977 cannot be counted towards completion of the

probationary period required after his reinstatement. Similarly, Mr. Barnett’s five month

break in service precludes a finding that he had “completed one year of current

continuous employment”—the second category of 5 C.F.R. § 752.201(a)(1).                See

Weinberger v. United States, 229 Ct. Cl. 612, 615 n.6 (1981) (acknowledging that,

under the regulations in effect at the time of Mr. Barnett’s resignation, “current

continuous employment” required employment “without a break of a working day”).




2009-3075                                    6
       Accordingly, Mr. Barnett did not meet the requirements of 5 C.F.R.

§ 752.201(a)(1) when he resigned in August 1978 and, therefore, he only has appeal

rights to the Board in limited circumstances. Because, however, his alleged involuntary

resignation claims do not fall within these limited circumstance, the Board correctly

determined that it lacked jurisdiction over his appeal.

       For the foregoing reasons, the final decision of the Board is affirmed.

       No costs.




2009-3075                                    7
