                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2007-3159


                                MICHAEL J. TOLBERT,

                                                            Petitioner,


                                            v.


                        SMALL BUSINESS ADMINISTRATION,

                                                            Respondent.



      Michael J. Tolbert, of Marietta, Georgia, pro se.

       Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Assistant Director.

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                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2007-3159



                               MICHAEL J. TOLBERT,

                                                                   Petitioner,

                                          v.

                       SMALL BUSINESS ADMINISTRATION,

                                                                   Respondent.

                          __________________________

                          DECIDED: July 16, 2007
                          __________________________


Before LOURIE, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Michael J. Tolbert (Tolbert) appeals the decision of the Merit Systems Protection

Board (the Board) dismissing his appeal for lack of jurisdiction. Tolbert v. Small Bus.

Admin., AT315H060751-I-1 (M.S.P.B. Jan. 12, 2007) (Board Decision). We affirm.

                                   BACKGROUND

      Tolbert was hired on a career-conditional appointment to the position of Loan

Specialist with the Office of Disaster Assistance, Loan Processing Department, Atlanta,

Georgia (the agency), effective November 11, 2002. The appointment was subject to

completion of a one-year initial probationary period. On January 30, 2003, the agency

informed Tolbert that his appointment was being terminated. There is no dispute that

Tolbert, having been employed with the agency for approximately two months, was
terminated during his probationary period and that he had not completed one year of

continuous service. See 5 U.S.C. § 7511(a)(1).

       On November 22, 2005, Tolbert appealed his removal. An Administrative Judge

(AJ) dismissed Tolbert’s appeal for lack of jurisdiction. Tolbert v. Small Bus. Admin.,

AT-315H-06-0751-I-1 (M.S.P.B. Mar. 23, 2006) (AJ’s Decision). The Board granted

Tolbert’s petition to review the AJ’s decision, finding that the AJ erred by failing to

address Tolbert’s allegations that the termination of his agency appointment was for

pre-appointment reasons and that the agency’s treatment of Tolbert amounted to a

prohibited personnel practice. Board Decision, at 2. Although, the Board determined

that Tolbert was entitled to a hearing on the jurisdictional issue, Tolbert declined a

hearing. Id. at 3. Based on the record, the Board found that Tolbert failed to satisfy his

burden of proof to establish the Board’s jurisdiction.      Id. at 4-5.   Thus, the Board

affirmed the AJ’s dismissal of the case. This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       The Board’s decision must be sustained unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise unlawful; issued in violation of

applicable procedures; or unsupported by substantial evidence. 5 U.S.C. § 7703(c);

Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). The Board’s

jurisdiction is limited to those matters over which it has been given jurisdiction by statute

or regulation. See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327 (Fed. Cir.

2006). Tolbert, having been terminated during his probationary period and prior to

completing one year of continuous service, did not have a statutory right of appeal from




2007-3159                                    2
his termination. 5 U.S.C. § 7511. By regulation, the Board may review appeals of

terminated, probationary employees only if the appeal alleges: (1) discrimination based

on partisan political reasons or marital status or (2) failure to follow proper notification

procedures (as set forth in 5 C.F.R. § 315.805) for an employee terminated for pre-

appointment reasons.      5 C.F.R. § 315.806(a)-(c).     Because Tolbert did not allege

discrimination based on partisan political reasons or marital status, the only issue is

whether the Board has jurisdiction to review the alleged failure by the agency to follow

the procedural requirements for terminating Tolbert “for reasons based in whole or in

part on conditions arising before his appointment.” 5 C.F.R. § 315.805.

       The Board determined that Tolbert presented a nonfrivolous allegation that he

was terminated for pre-appointment reasons.         Board Decision, at 3-4.       However,

because Tolbert waived his right to a hearing on the jurisdictional issue, Tolbert bore the

burden of proving Board jurisdiction by a preponderance of the evidence based on the

submitted record. See 5 C.F.R. § 1201.56(a)(2)(i). The Board concluded that Tolbert

failed to meet this burden, particularly in light of the evidence that Tolbert was

terminated for performance problems rather than pre-appointment reasons.             Board

Decision, at 4-5. The evidence shows that the agency informally counseled Tolbert

about his unacceptable performance on several occasions, and that his performance

alone was the agency’s reason for termination.         Tolbert presented no evidence to

support his allegation that his termination was based in any part on pre-appointment

conditions. The Board’s conclusion is supported by substantial evidence, and we must

affirm. See 5 U.S.C. § 7703(c).




2007-3159                                    3
       Tolbert failed to establish that any statute or regulation provides the Board with

jurisdiction to review his appeal, and the Board properly dismissed his appeal.

Moreover, Tolbert’s other allegations regarding prohibited personnel practices do not

provide an independent source of jurisdiction for the Board; rather, the personnel action

being challenged must be within the Board’s appellate jurisdiction under some law, rule

or regulation. See 5 U.S.C. § 2302; 5 U.S.C. § 7701. Here, that requirement is not met.

                                     CONCLUSION

       For the foregoing reasons, we affirm the Board’s dismissal of Tolbert’s appeal for

lack of jurisdiction.

                                        COSTS

       Each party shall bear its own costs.




2007-3159                                     4
