                        NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                         2008-3277

                                    KATRINA V. TATE,

                                                            Petitioner,

                                              v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                             Respondent.

      Katrina V. Tate, of Broadview, Illinois, pro se.

      Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Jeffrey A. Gauger, Attorney. Of counsel was Sara B.
Rearden, Attorney

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                         NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                        2008-3277


                                    KATRINA V. TATE,

                                                              Petitioner,

                                             v.


                         MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.


             Petition for review of the Merit Systems Protection Board in
             CH0752080246-I-1.


                              _________________________

                              DECIDED: April 2, 2009
                              _________________________


Before SCHALL, PLAGER, and PROST, Circuit Judges.

PER CURIAM.

                                        DECISION

      Katrina V. Tate petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that dismissed her appeal for lack of jurisdiction. Tate v. U.S

Postal Serv., No. CH-0752-08-0246-I-1, slip op. at 2 (M.S.P.B. May 12, 2008) (“Final

Decision”). We affirm.
                                      DISCUSSION

                                            I.

       Ms. Tate was employed by the U.S. Postal Service at the Carol Stream

Processing and Distribution Center in Carol Stream, Illinois, in the EAS-7 position of

Clerk/Mailhandler.   This employment was during a probationary period.           After her

appointment was terminated during that period, she appealed to the Board.

       In an acknowledgment order dated December 18, 2007, the administrative judge

(“AJ”) to whom the appeal was assigned informed Ms. Tate that she had the burden of

proving Board jurisdiction over her appeal, and she directed Ms. Tate to submit

evidence and argument on that issue. Ms. Tate did not respond to the AJ’s order.

       On January 15, 2008, the AJ issued an initial decision dismissing Ms. Tate’s

appeal for lack of jurisdiction. Tate v. U.S. Postal Serv., No. CH-0752-08-0246-I-1, slip

op. at 3 (M.S.P.B. Jan 15, 2008) (“Initial Decision”). The AJ determined that Ms. Tate

was not a Postal Service employee with appeal rights to the Board. Id. Such rights

belong to a Postal Service employee who (1) is a preference-eligible employee, a

management or supervisory employee, or an employee engaged in personnel work in

other than a purely non-confidential clerical capacity, and (2) has completed one year of

current, continuous service in the same or a similar position. See Bolton v. Merit Sys.

Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).               The AJ stated that her

acknowledgement order had informed Ms. Tate of these jurisdictional requirements and

that Ms. Tate had failed to present proof that they were met. Initial Decision, slip op. at

3.




2008-3277                                   2
       The Initial Decision became the final decision of the Board after the Board denied

Ms. Tate’s petition for review for failure to meet the criteria for review set forth at 5

C.F.R. § 1201.115(d). Final Decision, slip op. at 2. 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. 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. See 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human

Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

       Before the Board, Ms. Tate’s appeal form showed that she was a non-preference

eligible agency employee. At the same time, review of Ms. Tate’s employment record,

as reflected in her PS-50 form, revealed that she had not completed 1 year of current,

continuous service in the same or similar positions and that she was neither a

management or supervisory employee, nor an employee engaged in personnel work in

other than a purely non-confidential clerical capacity. Under these circumstances, the

decision of the Board is neither unsupported by substantial evidence nor incorrect as a

matter of law.

       For the foregoing reasons, the final decision of the Board dismissing Ms. Tate’s

appeal for lack of jurisdiction is affirmed.

       No costs.




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