             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

                                       04-3100


                                ODIS L. DAUGHRITY,

                                                      Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                      Respondent.

                            _________________________

                            DECIDED: December 10, 2004
                            _________________________


Before LOURIE, SCHALL, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Odis L. Daughrity petitions for review of the final decision of the Merit Systems

Protection Board dismissing his appeal for lack of jurisdiction.    Daughrity v. United

States Postal Serv., No. AT-3443-03-0325-I-1 (M.S.P.B. Oct. 31, 2003). We affirm.

                                   BACKGROUND

      Daughrity, a former postal worker, applied for a position at the United States

Postal Service (“USPS”). When the USPS subsequently notified Daughrity that he had

been removed from all of its hiring registers, Daughrity appealed his nonselection for a

position to the Board. An administrative judge (“AJ”) dismissed Daughrity’s appeal for
lack of jurisdiction, on the basis that nonselection for a position was not directly

appealable to the Board. Daughrity appealed the AJ’s decision to the full Board, which

denied his petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R.

§ 1201.113(b) (2004).

      Daughrity appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9) (2000).

                                      DISCUSSION

      Whether the Board has jurisdiction to adjudicate a particular appeal is a question

of law that we review de novo. Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.

Cir. 1999). The Board’s jurisdiction is not plenary; it is limited to adverse personnel

actions expressly made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a)

(2000). We agree with the Board that nonselection for employment is not a matter

within its appellate jurisdiction. See 5 U.S.C. § 7512 (2000).

      Statutory prescriptions notwithstanding, Daughrity has not met his burden of

establishing jurisdiction. See Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.

Cir. 1999). There is no indication in the record of the reasons for his removal from the

hiring register. Also, his citation of the Drug Abuse Office and Treatment Act of 1972,

Pub. L. No. 92-255, 86 Stat. 65 (1972) and USPS Handbook EL-312 on “Employment

and Placement” is unavailing as neither provides a basis for conferring jurisdiction on

the Board over an appeal for nonselection.

      Accordingly, we discern no error in the Board’s determination that it lacked

jurisdiction to review Daughrity’s nonselection for employment, and therefore affirm.




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