                 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


                                       04-3376

                                JAMES A. KOKKINIS,

                                               Petitioner,

                                          v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                          ___________________________

                          DECIDED: February 10, 2005
                          ___________________________


Before MICHEL, Chief Judge, BRYSON, and LINN, Circuit Judges.

BRYSON, Circuit Judge.

                                      DECISION

      James A. Kokkinis petitions for review of the final decision of the Merit Systems

Protection Board, Docket No. DA-0752-04-0065-I-1, dismissing his appeal from a

decision removing him from his position with the Department of Homeland Security (“the

agency”). We affirm.

                                   BACKGROUND

      Mr. Kokkinis, who was previously an Immigration Inspector with the Department

of Justice, was hired as a Federal Air Marshal on April 28, 2002. At that time, he was
under investigation by the Immigration and Naturalization Service for having an

inappropriate relationship with an illegal immigrant who was the subject of an FBI

narcotics investigation. Mr. Kokkinis did not disclose his relationship or the investigation

during his initial personnel security interview with the agency or on his form SF-86,

Questionnaire for National Security Positions, as was required. Seventeen months after

hiring Mr. Kokkinis, the agency became aware of his relationship and the investigation.

The agency subsequently removed Mr. Kokkinis from his position as a Federal Air

Marshal.

       Mr. Kokkinis filed an appeal to the Board from his termination.                 The

administrative judge who was assigned to his case issued an order advising Mr.

Kokkinis that because he was an excepted service employee, he had to satisfy one of

two requirements in order to establish that the Board had jurisdiction over his appeal:

he had to show either that he had “completed two years of current, continuous service

in the same or similar position” or that he was a nonprobationary employee under an

initial appointment that was to be converted to position in the competitive service. See

5 U.S.C. § 7511(a)(1)(C). Through counsel, Mr. Kokkinis responded by arguing that the

regulations giving the Board jurisdiction over competitive service employees gave the

Board jurisdiction in his case. In a supplemental response, Mr. Kokkinis argued that the

Board had jurisdiction because he had completed a one-year probationary period in his

previous competitive service position as an Immigration Inspector.

       The administrative judge dismissed Mr. Kokkinis’s appeal for lack of jurisdiction,

holding that he was not an employee within the meaning of 5 U.S.C. § 7511. Because

Mr. Kokkinis was an excepted service employee, not a competitive service employee,




04-3376                                      2
the administrative judge rejected his argument that he was covered by the regulatory

provisions applicable to competitive service provisions, 5 C.F.R §§ 315.805 and

315.806.   The administrative judge held that he was not an employee within the

meaning of 5 U.S.C. § 7511(a)(1)(C), which applies to persons in the excepted service,

because he was not in a position that was to be converted to a competitive service

position and because he had not been in the same or similar position for the statutorily

required two years. With respect to the latter requirement, the administrative judge

noted that Mr. Kokkinis had failed to offer evidence that his previous position as an

Immigration Inspector was the same as or similar to his position as a Federal Air

Marshal for purposes of that statute.

       Proceeding pro se, Mr. Kokkinis petitioned the full Board for review of the initial

decision. The Board denied the petition for review, and this appeal followed.

                                        DISCUSSION

      1. Mr. Kokkinis first argues that he presented new and material evidence to the

full Board that was not available when the record closed, and that the Board therefore

should have granted his petition for review of the administrative judge’s initial decision.

Regulations adopted by the Board authorize the full Board to review the initial decision

of an administrative judge if the petitioner can establish that “(1) New and material

evidence is available that, despite due diligence, was not available when the record

closed; or (2) The decision of the judge is based on an erroneous interpretation of

statute or regulation.” 5 C.F.R. § 1201.115(d). The full Board’s decision not to review

the initial decision of the administrative judge based on the submission of new and

material evidence is reviewable in this court together with the merits of the initial




04-3376                                     3
decision. See Azarkhish v. Office of Pers. Mgmt., 915 F.2d 675, 678-79 (Fed. Cir.

1990). We review the full Board’s decision not to review the initial decision under the

“abuse of discretion” standard. Id.

       In his petition for review to the full Board, Mr. Kokkinis asserted at some length

that his Federal Air Marshal position was similar to his former position as an Immigration

Inspector.   He contended that the two positions involved similar training and that

“[e]very federal officer that travels armed on commercial flights, whether on duty or off,

has the same duties and responsibilities” as a Federal Air Marshal. Those assertions,

however, did not constitute “new and material evidence that was not available when the

record closed.” The assertions were not supported by evidence, and in any event Mr.

Kokkinis did not explain why he failed to produce evidence regarding the similarity of the

two positions before the administrative judge, other than to assert that “[e]ven though

the new information/evidence presented by the appellant in his petition for review was

available to him prior to the closing of the record, appellant could not present it at the

time because he had not yet ascertained to what extent he could present the

information without divulging classified information or hurting the image of the Federal

Air Marshal Service.”

       Mr. Kokkinis’s explanation for his failure to make a sufficient evidentiary showing

before the administrative judge as to the similarity of the two positions in question is

wholly inadequate. He admitted that the presentation to the full Board did not constitute

new evidence that was not previously available. As for his contention that he was not

free to disclose that evidence, there is no indication that he took any steps to arrange to




04-3376                                     4
make that evidence available to the administrative judge, even if the agency would have

regarded the evidence as sensitive.

       Mr. Kokkinis also argues that in its response to his petition to the full Board, the

agency did not dispute that the two positions are similar. He therefore contends that the

Board should have accepted his submission on that issue. In fact, the agency did

dispute his contention that the positions were similar. Moreover, Mr. Kokkinis had the

burden of establishing Board jurisdiction, and his failure to introduce evidence to

support his jurisdictional argument is fatal to his claim. Accordingly, we conclude that

the Board did not abuse its discretion in not granting his petition for review on the basis

of his assertedly new evidence.

       2. Mr. Kokkinis next argues that the Board failed to consider his pro se status.

That argument is unavailing because Mr. Kokkinis was represented by counsel during

the proceedings before the administrative judge; he was pro se only for purposes of his

petition for review to the full Board. Furthermore, the administrative judge made it clear

to Mr. Kokkinis (and his attorney) that he had the burden of proving that the Board had

jurisdiction over his appeal. As a result, Mr. Kokkinis’s argument that he should not

have been required to “plead the issues with the precision of an attorney” fails not only

because he was represented by an attorney before the administrative judge but also

because he was informed in clear, straightforward language of exactly what was

required for him to establish Board jurisdiction.

       3. Mr. Kokkinis contends that he was entitled to a hearing on the issue of Board

jurisdiction. The issue of Board jurisdiction is a question of law that we review de novo.

See Vesser v. Office of Pers. Mgmt., 29 F.3d 600, 603 (Fed. Cir. 1994). To establish




04-3376                                      5
Board jurisdiction, Mr. Kokkinis needed to make a nonfrivolous allegation, supported by

affidavits or other evidence, that the Board had jurisdiction over his appeal.           See

Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1215 (Fed. Cir. 2003). An appellant

does not have a right to a hearing on the issue of Board jurisdiction, but rather must

establish Board jurisdiction by making a nonfrivolous allegation of jurisdictional facts

through affidavits and other evidence. See Marcino v. U.S. Postal Serv., 344 F.3d

1199, 1202 (Fed. Cir. 2003); Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361

(Fed. Cir. 2002).

         In the jurisdictional pleading that he filed with the administrative judge, Mr.

Kokkinis based his claim of Board jurisdiction on statutes and regulations that apply only

to competitive service employees. In light of the fact that he was an excepted service

employee, he was required to show that he was a nonprobationary employee under an

initial appointment pending conversion to the competitive service or that he had

completed two years of current continuous service in the same or a similar position. 5

U.S.C. § 7511(a)(1)(C); see Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 412 (Fed. Cir.

1995).     In his two responses to the administrative judge’s jurisdictional order, Mr.

Kokkinis failed to make any showing at all with respect to either of those two statutory

grounds for jurisdiction; he therefore failed to make the required nonfrivolous showing of

Board jurisdiction. Accordingly, the Board properly dismissed his appeal for lack of

jurisdiction and correctly declined to grant him a hearing on the merits of his claim.




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