                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                     2008-3318

                               BRUCE A. GOWINGS,

                                                           Petitioner,

                                         v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.


      Bruce A. Gowings, of Lewisburg, West Virginia, pro se.

      Michael A. Carney, General Attorney, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Joyce G. Friedman, Acting Associate
General Counsel for Litigation.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-3318

                                BRUCE A. GOWINGS,

                                               Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.


Petition for review of the Merit Systems Protection Board in DC315H080213-I-1.

                          __________________________

                          DECIDED: January 12, 2009
                          __________________________


Before MICHEL, Chief Judge, SCHALL and PROST, Circuit Judges.

PER CURIAM.

      Bruce A. Gowings petitions for review of an initial decision of the Merit Systems

Protection Board (“Board”) dismissing Mr. Gowings’s appeal for lack of jurisdiction,

Gowings v. Dep’t of Def., No. DC315H080213-I-1 (M.S.P.B. Apr. 1, 2008) (“Board

Decision”), which became final after the full board denied his petition for review.

Because we agree that Mr. Gowings has not established jurisdiction, we affirm.

                                   BACKGROUND

      On September 19, 2007, Mr. Gowings was appointed to a position in the

Department of Defense (“Agency”), subject to completion of a one-year probationary

period. Before expiration of that year, the Agency terminated Mr. Gowings, effective
December 1, 2007, for “undependability as evidenced by [his] pattern of using

unscheduled leave.” Mr. Gowings appealed his termination to the Board where he: (1)

challenged the basis of his termination, asserting that his unscheduled leave was

excused by medical certificates; and (2) alleged that, despite the Agency’s asserted

grounds, his termination was actually based upon a his failure to satisfy a pre-

appointment condition.

      During the proceedings, the administrative judge explained to Mr. Gowings that,

because he was terminated during a probationary period, the Board’s jurisdiction only

permitted him to appeal on limited grounds, as provided by 5 C.F.R. § 315.806. After

giving Mr. Gowings an opportunity to establish the Board’s jurisdiction, the

administrative judge found that the Board lacked jurisdiction and dismissed Mr.

Gowings’s appeal. Board Decision at 6. After the full Board denied Mr. Gowings’s

petition for review, he sought review by this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                    DISCUSSION

      The Board’s jurisdiction is limited to those matters prescribed by the applicable

laws, rules, and regulations. Torain v. U.S. Postal Serv., 83 F.3d 1420, 1422 (Fed. Cir.

1996) (citing 5 U.S.C. § 7701(a)). Whether the Board has jurisdiction is a question of

law that we review without deference, but we are bound by the Board’s underlying

factual findings “unless those findings are not supported by substantial evidence.”

Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998); see 5 U.S.C.

§ 7703(c). Mr. Gowings has the burden of establishing the Board’s jurisdiction. See 5

C.F.R. § 1201.56(a)(2)(i).




2008-3318                                  2
       An employee terminated during a probationary period has a limited right of

appeal to the Board. 5 C.F.R. § 315.806(a); Pervez v. Dep’t of the Navy, 193 F.3d

1371, 1375 (Fed. Cir. 1999). First, the Board has jurisdiction over an allegation that the

termination was based on partisan political reasons or marital status.            5 C.F.R.

§ 315.806(b). Mr. Gowings does not allege that his termination was based on either of

these factors. Second, the Board has jurisdiction over an allegation that the termination

was based on pre-appointment reasons, but was not effected in accordance with the

procedural requirements of § 315.805. Id. at § 315.806(c).

       In an attempt to establish jurisdiction under the latter provision, Mr. Gowings

argues that his termination was based on a pre-appointment reason, despite the

explanation in the termination letter that he was terminated because of post-

appointment conduct. In rejecting this contention, the Board found that Mr. Gowings

“proffered no facts to show that his termination was based on circumstances other than

those cited in the agency’s termination letter.” Board Decision at 4. On appeal, Mr.

Gowings does not point to any evidence to the contrary. Rather, Mr. Gowings appears

to contend that his failure to satisfy a condition of appointment (specifically, a residency

requirement) rendered his appointment erroneous and unlawful and, thus, this pre-

appointment reason must be considered because it occurred prior to his post-

appointment conduct.

       There is sufficient evidence to support the Board’s factual finding that Mr.

Gowings failed to show that his termination was based on a pre-appointment reason.

Moreover, the Board correctly determined that it lacked authority, without more, to

review the validity of Mr. Gowings’s original appointment.        Board Decision at 4-5.




2008-3318                                    3
Accordingly, we perceive no error in the Board’s conclusion that Mr. Gowings did not

establish that the Board had jurisdiction. Finally, having concluded that the Board lacks

jurisdiction, we do not reach Mr. Gowings’s arguments regarding the merits of his

appeal (e.g., whether the agency improperly disregarded medical certificates when it

decided to terminate Mr. Gowings and whether he deserves compensation for expenses

incurred when starting an allegedly erroneous appointment).

       For the foregoing reasons, we affirm the Board’s decision to dismiss for lack of

jurisdiction.

                                        COSTS

       Each party shall bear its own costs.




2008-3318                                     4
