             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
                                        04-3235

                                  JOHN D. HORTON,

                                                 Petitioner,

                                            v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.

                              _________________________

                              DECIDED: February 14, 2005
                              _________________________

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

PER CURIAM.

      John D. Horton appeals from the final decision of the Merit Systems Protection

Board. Horton v. Dep’t of the Army, No. DC-315H-03-0662-I-1 (M.S.P.B. Apr. 15, 2004)

(“Final Order”). We affirm.

                                    BACKGROUND

      John D. Horton was hired on a career-conditional appointment to the position of

librarian in Fort Belvoir, Virginia, effective June 30, 2003. Horton v. Dep’t of the Army,

No. DC-315H-03-0662-I-1 (M.S.P.B. Aug. 21, 2003) (“Initial Decision”).        On July 8,

2003, Horton was removed from his position because he had provided false information

on a “Declaration of Federal Employment.”        On the declaration, executed June 30,

2003, Horton claimed that he had not been convicted during the last 10 years, even
though, at the time of his declaration, he was found guilty of destroying government

property and resisting, delaying, or obstructing a police officer.1 On July 10, 2003, he

timely appealed his removal to the Merit Systems Protection Board.

       The Administrative Judge (“AJ”) dismissed Horton’s appeal for lack of jurisdiction.

The dismissal was based on the finding that Horton was a probationary employee.

Initial Decision, slip op. at 3. According to the AJ, “[p]robationary employees who have

less than one year of continuous service have limited rights of appeal to the Board,” and

Horton’s appeal did not fit into the specific circumstances that would have given the

Board jurisdiction. Id.

       Horton argued to the AJ that he was not a probationary employee. Instead, he

sought classification as a “tenured, competitive service employee” having broader rights

of appeal to the Board. Horton also contended that he was hired through reinstatement

procedures which did not require a new probationary period. Finally, Horton argued that

because he was terminated for preappointment reasons, he was entitled to the

termination procedure set forth in 5 C.F.R. § 315.805, and that the agency’s denial of

that procedure gave him a right of appeal to the Board.

       Horton’s arguments did not persuade the AJ, who instead found that “it was

beyond cavil that the appellant was terminated for post-appointment reasons.” Id., slip

op. at 4. The AJ noted that Horton was terminated for falsification of documents that he

completed after he was appointed librarian, and thus, the agency was not required to

provide the termination procedure under 5 C.F.R. § 315.805. The AJ also determined

       1
              On August 14, 2003, an appellate court vacated and remanded all of the
convictions because the case was originally tried before a magistrate judge without
Horton’s consent. When the case returned to the district court, the government moved
to dismiss the indictment with prejudice, and the court granted that motion.


04-3235                                    -2-
that Horton’s prior employment with the IRS in 1998 and 1989 did not qualify him as a

“tenured, competitive service employee” because he had not served three years of

“substantially continuous creditable service” pursuant to 5 C.F.R. § 315.201(a).

Moreover, the AJ did not consider Horton’s prior employment with the IRS to be “current

continuous service” for the purpose of giving Horton “employee” status under 5 U.S.C.

§ 7511(a)(1)(A)(ii).   Relying on 5 C.F.R. § 315.801(a), the AJ also concluded that

because Horton was appointed from a competitive list of eligibles, he was required to

serve a probationary period. Finally, the AJ found nothing in the record to support

Horton’s contention that he was hired through reinstatement procedures or that he met

the requirements for reinstatement eligibility under 5 C.F.R. § 315.401.

       Horton petitioned the full Board for review of the Initial Decision. Concluding that

there was no new, previously unavailable evidence and that the AJ made no error in law

or regulation that affected the outcome of the appeal, the Board denied Horton’s

petition, rendering the Initial Decision final. Final Order, slip op. at 1-2.

       Horton timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                        DISCUSSION

       Congress has expressly limited the scope of our review in an appeal from the

Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard




04-3235                                       -3-
of review, a court will not overturn an agency decision if it is supported by ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison

Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). Moreover, the Supreme Court has

explained that “the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s findings from being supported by

substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

        “The Board’s jurisdiction is . . . limited to those matters over which it has been

given jurisdiction by statute or regulation.”     Initial Decision, slip op. at 2 (citations

omitted).    On appeal, Horton does not challenge the AJ’s finding that he was a

probationary employee. Accordingly, the Board has jurisdiction over Horton’s appeal

stemming from post-appointment conduct only if he can make a nonfrivolous allegation

of discrimination based on partisan political reasons or marital status.          5 C.F.R.

§ 315.806(b).      Horton’s claim that the agency improperly relied upon vacated

convictions as the basis for his termination is not one of the limited circumstances that

would confer jurisdiction to the Board. Moreover, despite the fact that an appellate court

subsequently vacated the convictions at issue, there can be no debate that at the time

of Horton’s declaration, the representation that he had not been convicted of a crime

within the last ten years was untrue. Thus, the Board properly dismissed the case for

lack of jurisdiction.

       Under 5 C.F.R. § 315.806(c), Horton can appeal to the Board if he can establish

that “his termination was not effected in accordance with the procedural requirements”

of 5 C.F.R. § 315.805. To be entitled to the termination procedure under 5 C.F.R.




04-3235                                     -4-
§ 315.805, a probationer must first demonstrate that his termination was due to

conditions arising before appointment. We agree with the AJ that the post-employment

conduct leading to Horton’s termination—providing false information in his declaration—

was not a condition arising before appointment.

      Horton argues that in order to determine whether he falsified his declaration, the

agency had to consider the prior convictions, which Horton characterizes as

preappointment conditions. Horton’s argument misses the point. The only basis for

Horton’s termination was his act of providing false information on the declaration, and

there is no dispute that that act occurred after he was appointed librarian.2 Thus, we

conclude that Horton was not improperly denied the termination procedure under 5

C.F.R. § 315.805.

      We have considered Horton’s remaining arguments and find them unconvincing.

                                    CONCLUSION

      For the foregoing reasons, we affirm the Board’s decision.




      2
              We have found nothing in the record to indicate that Horton would have
had his employment terminated had he provided truthful information regarding his prior
conviction in his declaration. Indeed, if Horton had made a truthful disclosure and had
his employment terminated on that basis alone, the agency may have given him the
termination procedure under 5 C.F.R. § 315.805 that he currently seeks.


04-3235                                   -5-
