  United States Court of Appeals
      for the Federal Circuit
              __________________________

               AHMED M. YOUNIES,
                   Petitioner,

                          v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2011-3031
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF315H100492-I-1.
               __________________________

              Decided: December 5, 2010
              __________________________

    BRYAN SCHWARTZ, Bryan Schwartz Law, of Oakland,
California, argued for petitioner.

   KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With her on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
              __________________________
YOUNIES   v. MSPB                                        2


     Before LINN, PROST and REYNA, Circuit Judges.
PROST, Circuit Judge.

    Ahmed M. Younies, a former employee of the U.S.
Department of Labor, appeals the decision of the Merit
Systems Protection Board (“MSPB”). The MSPB deter-
mined that it lacked subject matter jurisdiction over Mr.
Younies’s appeal because the Department of Labor did not
rely on pre-probationary reasons in terminating his
employment. Because substantial evidence supports the
MSPB’s determination, we affirm the MSPB’s dismissal of
Mr. Younies’s appeal for lack of jurisdiction.

                        BACKGROUND

    On October 15, 2009, Mr. Younies applied for a posi-
tion as a Supervisory Equal [Employment] Opportunity
Specialist with the Department of Labor. The application
form asked whether Mr. Younies had been convicted of a
crime or put on probation during the preceding ten years.
By checking a box, Mr. Younies replied “No.” He then
signed the form in the “Applicant’s Signature” field,
certifying that his answers to the questions were truthful.
A few weeks later, on November 9, 2009, the Department
of Labor hired Mr. Younies. Once again, Mr. Younies
signed the same application form—this time in the “Ap-
pointee’s Signature” field—and certified for a second time
that his answers to the questions were truthful.

    It came to light during a background check, however,
that Mr. Younies had a prior conviction for Disturbing the
Peace under California law, for which he served one year
on probation. See Cal. Penal Code § 415. The Depart-
ment of Labor informed Mr. Younies of the problem and
held a fact-finding meeting on February 4, 2010, during
which Mr. Younies admitted that he had been arrested,
3                                            YOUNIES   v. MSPB


but maintained that he had never been convicted. The
next day, Mr. Younies submitted a written response to the
Department of Labor, wherein he explained that he had
indeed been charged and put on “informal probation,” but
insisted that he had not been convicted. He also stated
that because the incident had occurred more than five
years earlier, he had forgotten about it. Finally, the
response indicated that Mr. Younies contacted his attor-
ney (who had defended him against the criminal charges)
and obtained his criminal case number, which Mr.
Younies provided in the letter as well. On February 9,
2010, Mr. Younies submitted additional material to the
Department of Labor, including a letter from his attorney
that explained the nature of the criminal charge and
stated that Mr. Younies had pled guilty to Disturbing the
Peace under California law. He also submitted an “Order
for Relief” under Cal. Penal Code §§ 1203.4, 1203.4a,
dated January 26, 2006. The Order for Relief stated in
part,

    It is hereby ordered that the plea, verdict, or find-
    ing of guilty in the above-entitled action be set
    aside and vacated and a plea of not guilty be en-
    tered, and that the accusatory filing is dismissed
    pursuant to Penal Code Section 1203.4/1203.4a.

    This order does NOT relieve the defendant of the
    obligation to disclose the conviction in response to
    any direct question contained in any question-
    naire or application for public office, for licensure
    by any state or local agency, or for contracting
    with the California State Lottery.

Pet’r’s App. 137.
YOUNIES   v. MSPB                                         4


    On February 24, 2010, the Department of Labor sent
Mr. Younies a termination letter, stating that his em-
ployment would be terminated as of February 26, 2010.
The letter explained that after consulting Mr. Younies’s
criminal case record, the Department of Labor determined
that he had been convicted and put on probation. It also
noted that Mr. Younies had certified the contrary on
November 9, 2009 (the second time Mr. Younies signed
the letter), and that he had maintained that position
during the fact-finding meeting. It then stated,

    The probationary period is a means of observing
    and assessing the conduct of an employee and, as
    such, is an essential and integral part of the ex-
    amining process. Your failure to disclose your
    probation, beginning in 2004, on the [application
    form] is not in accordance with the truthfulness
    that management expects of its employees. It is
    also not in accordance with [the] expectations of a
    Supervisory Equal Opportunity Specialist. In
    your supervisory role, you may have to adjudicate
    possible actionable issues arising from back-
    ground investigations of employees you supervise.
    The fact that you failed to disclose required in-
    formation on your own [application form] raises a
    serious question as to your ability to properly
    carry out this role.

Id. at 131-32.

    Mr. Younies appealed the dismissal to the MSPB, ar-
guing that the Department of Labor failed to comply with
the regulatory termination procedures of 5 C.F.R.
§ 315.805, which apply to employees whose employment is
terminated in whole or in part based on pre-probationary
conditions. Id. The administrative judge determined,
5                                           YOUNIES   v. MSPB


however, that Mr. Younies did not make a non-frivolous
assertion that the Department of Labor terminated his
employment based on pre-probationary reasons. Rather,
according to the administrative judge, the Department of
Labor terminated Mr. Younies’s employment based on his
conduct during the probationary period. Reasoning that
the applicable regulations do not provide a right to appeal
to employees whose termination of employment is based
entirely on conduct during the probationary period, the
administrative judge dismissed Mr. Younies’s appeal for
lack of jurisdiction. Mr. Younies petitioned the MSPB for
review of the administrative judge’s decision. The MSPB
denied Mr. Younies’s petition for review, rendering the
administrative judge’s initial decision the final decision of
the MSPB. This appeal followed.

                        DISCUSSION

    We review de novo the MSPB’s determinations con-
cerning jurisdiction but review for substantial evidence
factual findings that underlie the MSPB’s jurisdictional
analysis. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008).

    The only question presented to us is whether Mr.
Younies has a right to appeal the termination of his
employment to the MSPB under 5 C.F.R. § 315.806(c).
The right to appeal under § 315.806(c) is only available to
those probationary employees who qualify for, but alleg-
edly do not receive, the termination procedures of §
315.805. The termination procedures of § 315.805 entail
an advance written notice of the proposed adverse action,
an opportunity to respond, and a written notice of the
adverse decision. 5 C.F.R. § 315.805. But these termina-
tion procedures are only available to probationary em-
ployees who are dismissed “in whole or in part” based on
YOUNIES   v. MSPB                                          6


conditions that existed prior to their employment. Id. In
contrast, the regulations do not provide these termination
procedures and the corresponding right to appeal to
probationary employees who are dismissed because their
conduct or performance during the probationary period
reveals that they are not fit to perform their job-related
duties. See 5 C.F.R. §§ 315.804(a), 315.806(c). Our juris-
dictional analysis thus reduces to determining whether
substantial evidence supports the MSPB’s determination
that Mr. Younies was not entitled to the procedures of §
315.805—that is, whether he was not terminated based in
whole or in part on a pre-probationary condition. Cf.
Langer v. Dep’t of Treasury, 265 F.3d 1259, 1265 (Fed.
Cir. 2001). We hold that it does.

    What may potentially complicate our jurisdictional
analysis is that Mr. Younies signed the application form
twice, once before employment and once during employ-
ment. Mr. Younies urges us to view the two signatures as
part of a single event that occurred (or at least started to
occur) before he was employed. He points out that he
answered the questions in the application form only
before employment, and argues that notwithstanding his
second signature, the failure to disclose the conviction
pre-dated his employment. We disagree. Each time Mr.
Younies signed the form, he “certif[ied] that, to the best of
[his] knowledge and belief, all of the information on [the
form] is true, correct, complete, and made in good faith.”
Pet’r’s App. 113. The initial certification was made by Mr.
Younies as an “Applicant;” the second was made by Mr.
Younies as an “Appointee.” Thus, for the purpose of our
analysis, the first and second signatures constitute sepa-
rate events.

    Nor is it material, in our view, that the two misrepre-
sentations are based on the same underlying facts (Mr.
7                                           YOUNIES   v. MSPB


Younies’s criminal history). We of course observe that
once the Department of Labor knew about the second
misrepresentation, it also inevitably knew about the first.
But Mr. Younies does not provide any authority that
suggests that the second misrepresentation necessarily
“relates back” to the first. On the contrary, the MSPB has
long held that an employer’s reliance on a condition that
originates in the employee’s pre-employment history—and
yet continues to exist during the probationary period—
does not necessarily trigger the pre-probationary proce-
dural requirements of § 315.805. See, e.g., Van Doneen v.
Dep’t of Transp., 33 MSPR 420, 423 (1987) (holding that
an employee’s dismissal based on his failure to maintain
security clearance was not a pre-probationary reason,
even though security clearance was denied due to the
employee’s pre-employment history), aff’d, 837 F.2d 1098
(Fed. Cir. 1987) (unpublished table decision); Rivera v.
Dep’t of Navy, 114 MSPR 52, 55 (2010) (holding that
failure to obtain a credit card was not a pre-probationary
reason, even though the employee’s poor credit history
pre-dated employment). The MSPB’s refusal to “relate
back” the reasons for termination to when they first came
into existence is supported by the structure of the perti-
nent regulatory scheme and grounded in sound policy.
Section 315.806(c) provides a right to appeal to pre-
probationary employees who are terminated based on pre-
probationary reasons; yet it does not confer the same
right upon an employee who is terminated because his
“work performance or conduct during [the probationary]
period fails to demonstrate his fitness or his qualifications
for continued employment.” 5 C.F.R. § 315.804(a). We
agree with the MSPB, therefore, that we must “distin-
guish between a pre-existing condition and the effect that
condition has on an employee’s performance.” Van Don-
een, 33 MSPR at 423. And, as the MSPB has aptly noted,
“tracing back [an employee’s] performance deficiency to a
YOUNIES   v. MSPB                                        8


pre-appointment condition[] could possibly transform
almost every separation of a probationer into a case
involving a condition arising before appointment.” Thus,
to the extent that Mr. Younies invites us to relate the
second misrepresentation to the first as a matter of law
merely because the misrepresentations were based on the
same underlying facts, we decline the invitation.

     Having so framed the inquiry, our analysis must focus
on determining whether substantial evidence supports
the MSPB’s determination that the Department of Labor
relied solely on the second misrepresentation, not the
first. Based on the record before us, we have no difficulty
in holding that it does. The termination letter expressly
mentions the second date on which Mr. Younies signed
the application form and makes no mention of the first.
The termination letter also points to Mr. Younies’s persis-
tence in maintaining that he had never been convicted,
even after the Department of Labor brought his criminal
record to his attention. The termination letter also notes
that Mr. Younies’s misrepresentation regarding his
criminal record undermined his ability to perform certain
aspects of the job, particularly adjudicating disputes that
may arise out of background investigations of the De-
partment of Labor’s personnel. Substantial evidence
supports the Board’s conclusion, therefore, that the De-
partment of Labor terminated Mr. Younies’s employment
not based on a pre-probationary reason as defined under §
315.805, but based on the determination that his “conduct
during [the probationary] period fail[ed] to demonstrate
his fitness or his qualifications for continued employ-
ment.” 5 C.F.R. § 315.804(a); see also Van Doneen, 33
MSPR at 423.

   Finally, Mr. Younies argues that his conviction was
expunged under California law, and that he did not
9                                          YOUNIES   v. MSPB


misrepresent the facts in the first place. The problem is,
however, that Mr. Younies has only invoked § 315.806(c)
as the source of jurisdiction for the MSPB, and the
MSPB’s jurisdiction under § 315.806(c) is limited to
examining whether Mr. Younies received the process that
was due under the regulations, not whether the substance
of the employment decision was correct. 5 C.F.R. §
315.806(c); see also Hope v. Dep’t of the Army, 108 MSPR
6, 10 (2008). Our jurisdictional inquiry is thus similarly
narrow in scope because Mr. Younies may not create
jurisdiction through assertions that are not reviewable on
appeal. Moreover, we see no factual basis in the record
for Mr. Younies’s argument that the Department of
Labor’s stated justification is a ruse to circumvent the
procedural safeguards of 5 C.F.R. § 315.805. Indeed, the
Department of Labor already provided Mr. Younies with
most of what he would have been entitled to under §
315.805 by giving him advance notice of the allegations
(albeit not in writing), an opportunity to respond (of
which Mr. Younies availed himself), and a written expla-
nation of the reasons for termination. Cf. id.

    In sum, in order for Mr. Younies to successfully in-
voke § 315.806(c) as the source of the MSPB’s jurisdiction,
he must point to sufficient facts in the record that would
amount to a non-frivolous assertion that the Department
of Labor actually relied on a pre-employment condition in
terminating his employment. Because substantial evi-
dence supports the MSPB’s determination that Mr.
Younies has failed to do so, we must affirm the MSPB’s
dismissal of Mr. Younies’s appeal for lack of jurisdiction.



                       CONCLUSION
YOUNIES   v. MSPB                                   10


    We affirm the MSPB’s dismissal of Mr. Younies’s ap-
peal for lack of jurisdiction.

                     AFFIRMED
