                  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

                                         05-3165

                                 LEIGHTON D. PHARR,

                                                              Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.

                            ___________________________

                            DECIDED: March 10, 2006
                            ___________________________

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) denied Leighton D. Pharr’s petition

for review of an Initial Decision dismissing his appeal for lack of jurisdiction. Pharr v.

Dep’t of Army, Docket No. DA-315H-04-0447-I-1 (M.S.P.B. Feb. 10, 2005) (Final

Order).   Because the Board correctly determined that it did not have jurisdiction to

consider Mr. Pharr’s appeal, this court affirms.

                                     BACKGROUND

       On April 21, 2003, Mr. Pharr was appointed as a GS-5 Quality Assurance

Specialist (Ammunition), a competitive position with the Department of the Army. Mr.

Pharr’s appoint was subject to a one-year probationary period. The Army terminated
his employment based on a charge of “violence in the work place.” That termination

was effective April 14, 2004, about one week before the end of the probationary period.

Mr. Pharr timely appealed his termination to the Board. Before the Board, he argued

that the behavior leading to his termination was merely horseplay done in a friendly and

joking manner. Based on Mr. Pharr’s probationary status at the time of his termination,

the Board concluded that it lacked jurisdiction and dismissed Mr. Pharr’s appeal. Pharr

v. Dep’t of Army, Docket No. DA-315H-04-0447-I-1, slip op. at 3 (M.S.P.B. May 19,

2004) (Initial Decision).

                                        DISCUSSION

       In dismissing Mr. Pharr’s appeal, the Board noted 5 U.S.C. § 7701(a), which

limits its appellate jurisdiction to that granted by statute, law, or regulation.   Initial

Decision, slip op. at 2. Probationary employees generally have no statutory appeal

rights because 5 U.S.C. § 7511(a) excludes individuals in competitive service serving

probationary or trial periods under initial employment from the definition of “employee.”

See Pervez v. Dep’t of Navy, 193 F.3d 1371, 1375 (Fed. Cir. 1999) (discussing 5 U.S.C.

§ 7511(a)(1)(A)). However, pursuant to 5 C.F.R. § 315.806, probationary employees

have a limited right of appeal for terminations alleged to be on the basis of partisan

political reasons or marital status.      Id.   Because Mr. Pharr did not assert that his

removal was premised on partisan political reasons or marital status discrimination, the

Board concluded that Mr. Pharr failed to meet his burden of proof to establish the

Board’s jurisdiction. Initial Decision, slip op. at 3.

       On appeal, Mr. Pharr does not dispute that his termination was premised on his

alleged violent behavior, that the termination occurred while he was a probationary




05-3165                                         2
employee, or that 5 U.S.C. § 7511 provides no right of appeal for a probationary

employee. Instead, Mr. Pharr argues that he was deprived of his property interest in his

job without due process of law, thus raising a constitutional question.

       To establish a procedural due process claim, Mr. Pharr must show that he has

some legitimate property or liberty interest in his employment. While procedural due

process is guaranteed by the Constitution, the property rights it protects are created not

by the Constitution, but by other sources of law. Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972).        Mr. Pharr does not dispute that a probationary

employee has no property interest in their job in the absence of an employment contract

preventing dismissal except for good cause, or that probationary employees have no

due process rights unless the issue arose prior to their appointment as probationary

employees. Rather, Mr. Pharr cites Wieman v. Updegraff, 344 U.S. 183, 192 (1952), for

the proposition that the Constitution provides recourse for public servants whose

exclusion based on a statute is patently arbitrary or discriminatory. Thus, Mr. Pharr

argues that the absence of any property interest in his job pursuant to his status as a

probationary employee is patently arbitrary and unjust, especially given that he was

terminated only seven days from the end of his probationary period.           Mr. Pharr’s

argument misreads Wieman.         In Wieman, the Court struck down a state statute

requiring all state officers and employees to take a loyalty oath, which, among other

things, included provisions foreswearing membership in communist organizations. It

was the statute on its face, rather than as applied to a particular person or group, which

the Court found to be patently arbitrary and thus unconstitutional. Wieman, 344 U.S. at

219.




05-3165                                     3
       While Mr. Pharr devotes a substantial portion of his brief to arguing the merits of

his dismissal, he never demonstrates that 5 U.S.C. § 7511, or any other statute or

regulation excluding probationary employees from most of the rights to appeal rights

enjoyed by regular employees, is itself patently arbitrary. Probationary employees are

most vulnerable to dismissal shortly before the end of their probationary period, Shaw v.

United States, 622 F.2d 520, 527 (Ct. Cl. 1980), so Mr. Pharr’s dismissal at that

particular time is not uniquely suspect or unjust. Mr. Pharr’s termination so close to the

end of his probationary period, while certainly unfortunate from his perspective, does

not bestow upon him the rights of a regular employee generally or a property right in his

employment in particular.

       Because of his probationary status at the time of his termination, Mr. Pharr had

no property interest in his employment and thus no valid due process claim. As such,

this court affirms the Board’s Final Order denying review of the Board’s Initial Decision

dismissing Mr. Pharr’s appeal for lack of jurisdiction.




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