                      NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                       2008-3145

                                SHEILA D. ST. CLAIR,

                                                     Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent.


      Sheila D. St. Clair, of Germantown, Maryland, pro se.

      Jeffrey A. Gauger, 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 Rosa M. Koppel, Deputy General Counsel.

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                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                         2008-3145


                                   SHEILA D. ST. CLAIR,


                                                          Petitioner,

                                              v.

                        MERIT SYSTEMS PROTECTION BOARD,


                                                          Respondent.



Petition for review of the Merit Systems Protection Board in DC315H070364-I-1.


                             ___________________________

                                DECIDED: July 31, 2008
                             ___________________________



Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.


NEWMAN, Circuit Judge.

       Sheila D. St. Clair, pro se, appeals the decision of the Merit Systems Protection

Board, Docket No. DC-315H-07-0354-I-1, dismissing her appeal for untimeliness and lack

of jurisdiction, on the ground that Ms. St. Clair was in probationary status at the time of her
removal. We agree that her status was probationary and that it was not continuous with

her earlier tenured employment; and that the dismissal was in accordance with law.

                                     BACKGROUND

       Ms. St. Clair entered the federal service as a career-conditional employee at the

National Institutes of Health in November, 1977 subject to an initial probationary period,

which she completed on November 3, 1979. On November 4, 1979 she transferred to a

temporary appointment at the National Bureau of Standards (now the National Institute of

Standards and Technology (NIST)). She received a career conditional appointment on

August 24, 1980, and became a career tenured employee on November 20, 1980. Ms. St.

Clair remained at the agency for the next fifteen years, resigning her position as a writer-

editor in 1995.

       On May 21, 2001 Ms. St. Clair returned to NIST as an office automation assistant.

The Notice of Personnel Action form (SF-50) stated that her career appointment status was

subject to the completion of a one-year probationary period. The SF-50 also contained

“remarks” that she had completed the service requirement for career tenure during her prior

employment.       On November 19, 2001 Ms. St. Clair’s supervisor terminated her

employment. A Human Resources Specialist, who was present, told Ms. St. Clair that her

appeal rights were very limited because she was a probationary employee, and advised her

to resign voluntarily lest her record be forever tainted. Ms. St. Clair met with a former

supervisor and a director two days later to discuss the matter. The former supervisor

advised her that she had no rights as a probationary employee, after which Ms. St. Clair

signed the resignation form.




2008-3145                                    2
     Ms. St. Clair thereafter pursued several avenues of relief, stating that her resignation

was not voluntary. None was successful. On February 8, 2007, Ms. St. Clair appealed to

the MSPB, stating that despite her probationary status, based on her past service from

1977-1995 she had a right of appeal, and that the agency terminated her without informing

her of that right. She stated that she only learned of her right to appeal by reading an

article on the MSPB’s web site. On June 8, 2007 an administrative judge dismissed Ms. St.

Clair’s appeal. The full Board denied review, and this appeal followed.

                                        DISCUSSION

      Decisions of the MSPB are reviewed to determine whether they are 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); Cheeseman v. Office of Pers.

Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

      Removal from employment is appealable to the MSPB by a person who is an

"employee" under 5 U.S.C. §7511(a) on the removal date. Section 7511(a) as then in

effect defined “employee” as follows:

      §7511 (a) For the purpose of this subchapter--
      (1) "employee" means—
        (A) an individual in the competitive service--
             (i) who is not serving a probationary or trial period under an initial
             appointment; or
             (ii) who has completed 1 year of current continuous service under other than
             a temporary appointment limited to 1 year or less;
        (B) a preference eligible in the excepted service who has completed 1 year of
        current continuous service in the same or similar positions--
             (i) in an Executive agency; or
             (ii) in the United States Postal Service or Postal Regulatory Commission; and
        (C) an individual in the excepted service (other than a preference eligible)--
             (i) who is not serving a probationary or trial period under an initial
             appointment pending conversion to the competitive service; or

2008-3145                                    3
              (ii) who has completed 2 years of current continuous service in the same or
              similar positions in an Executive agency under other than a temporary
              appointment limited to 2 years or less;
                                               …

5 U.S.C. §7511(a)(2000). Appeal to the MSPB must be filed within thirty days of the

effective date of the removal, 5 C.F.R. §1201.22(b), but if the petitioner demonstrates good

cause, the Board may waive the time limit for filing the appeal. 5 C.F.R. §§ 1201.12,

1201.22(c), 1201.56(a)(2)(ii).

       The MSPB found that Ms. St. Clair's appeal was untimely because it was filed more

than five years after the 30-day deadline of December 19, 2001. The Board found that Ms.

St. Clair did not show good cause for the delay, for she did not show circumstances beyond

her control, unavoidable casualty, or excusable neglect that affected her ability to comply

with the 30-day time limit. The Board found that the agency's termination letter correctly

told her of her right to appeal if she believed the termination was the result of partisan

political or marital status discrimination, the only grounds available to probationary

employees.

       Ms. St. Clair argues that during the five years after her termination, often with advice

from agency representatives, she diligently attempted to have her case heard in various

tribunals, with no success.      She states that she only recently discovered that her

probationary status did not preclude this appeal, although no agency so advised her. She

states that this court's decisions in Van Wersch v. Department of Health & Human

Services., 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v. Dep't of the Air Force, 307

F.3d 1339 (Fed. Cir. 2002), provide appeal rights under the alternative definition of

“employee” in §7511(a)(1)(A)(ii) because she had "completed one year of current

continuous service under other than a temporary appointment limited to 1 year or less"

2008-3145                                     4
during her service from 1977 to 1995.         Although the facts in Van Wersch involved

subsection §7511(a)(1)(C) instead of §7511(a)(1)(A), McCormick held that the same

reasoning applies to both subsections.

       The Board rejected Ms. St. Clair's argument that she was an employee under

§7511(a)(1)(A)(ii), explaining that "current continuous service" in that provision requires that

there was no break in employment, citing 5 C.F.R. §752.402(b);

       §752.402(b) Current continuous employment means a period of employment
       or service immediately preceding an adverse action in the same or similar
       positions without a break in Federal civilian employment of a workday.

The Board pointed out that Ms. St. Clair had a break in service, unlike the petitioners in

McCormick and Van Wersch. The Board also declined to apply the McCormick decision

because it was issued after her termination in 2001; the Board stated that its decision in

Porter v. Department of Defense, 98 M.S.P.R. 461 (2005), making McCormick retroactive

to pending cases, did not apply to Ms. St. Clair because her case was not then pending.

       Ms. St. Clair does not meet the requirements of "current continuous service," for

there was a five year interruption between her past service and the service from which she

was removed. Although Ms. St. Clair stresses that she had “reinstatement rights” based on

her earlier position, such rights do not negate the requirement of continuous service, and

did not preclude the imposition of a probationary period in the position she entered after six

years of absence.

       The Board, reviewing Ms. St. Clair’s arguments, also ruled that she did not rebut the

presumption of voluntariness, for she did not show that her action was the product of

duress or coercion, misleading or deceptive information, or that she was mentally

incompetent. Although Ms. St. Clair states that the merits of the voluntariness of her


2008-3145                                      5
resignation have never been adjudicated, the MSPB correctly ruled that Ms. St. Clair had

no appeal rights, for she did not meet the definition of “employee” in 5 U.S.C. §7511(a).

The Board’s dismissal must be affirmed.

      No costs.




2008-3145                                  6
