                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                      2009-3021

                                 DENNIS HUBBARD,

                                                           Petitioner,

                                           v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                           Respondent.

                                          and

                          DEPARTMENT OF THE INTERIOR,

                                                          Intervenor.


      Dennis Hubbard of Chadron, Nebraska, pro se.

      Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Jeffrey A. Gauger, Attorney.

       Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. With her on the
brief were Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director.

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                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2009-3021

                                  DENNIS HUBBARD,

                                                 Petitioner,
                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent,

                                           and

                          DEPARTMENT OF THE INTERIOR,

                                                 Intervenor.


                Petition for review of the Merit Systems Protection Board
                                   in DE075208027-I-1.

                           ___________________________

                           DECIDED: April 6, 2009
                           ___________________________


Before BRYSON, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.

                                       DECISION

      Dennis Hubbard petitions for review of the decision of the Merit Systems

Protection Board dismissing his appeal for lack of jurisdiction. We affirm.
                                     BACKGROUND

       Mr. Hubbard was employed for almost 30 years as a teacher at Pine Ridge High

School, which is located on the Pine Ridge Indian Reservation in South Dakota. In that

capacity, he worked for the Bureau of Indian Education, an agency within the

Department of the Interior. He was removed from his position on May 20, 2007, based

on his conviction for off-duty criminal conduct.

       Mr. Hubbard appealed the removal decision to the Merit Systems Protection

Board, claiming that he had been denied the protections of 25 U.S.C. § 2012(e) and had

been discriminated against on the basis of his age. The Bureau of Indian Education

filed a motion to dismiss the appeal for lack of subject matter jurisdiction under 25

U.S.C. § 2012(a), which provides that individuals appointed to an “education position”

within the Bureau after November 1, 1979, shall be excepted from the civil service rules

governing the removal of federal employees. See 25 U.S.C. § 2012(a), (o), (p). The

administrative judge who was assigned to the appeal issued an order directing the

parties to submit evidence pertaining to Mr. Hubbard’s tenure in his position.      Mr.

Hubbard produced his most recent Notification of Personnel Action, Standard Form 50-

B (“SF-50”), which indicated a service computation date of August 26, 1978.         The

Bureau responded by providing the administrative judge with all of Mr. Hubbard’s SF-

50s, dating back to when he was first hired in March 1978. Those materials showed

that Mr. Hubbard served under a series of temporary appointments for the first two

years of his teaching career, before being terminated on May 30, 1980, due to “lack of

work.” Three months later, the Bureau rehired Mr. Hubbard as a contract “educator”

pursuant to 25 U.S.C. § 2012(p). The administrative judge dismissed the appeal based




2009-3021                                    2
on the evidence in the record, and the full Board denied review. Mr. Hubbard now

petitions for review by this court.

                                      DISCUSSION

       Mr. Hubbard does not challenge the Board’s conclusion that the position from

which he was removed was an “education position” within the meaning of 25 U.S.C.

§ 2012(p) and that his appointment to that position did not occur until after November 1,

1979. Thus, there is no dispute that Mr. Hubbard falls within the class of individuals that

Congress has excluded from the coverage of those provisions of the Civil Service

Reform Act of 1978 that relate to the appointment, promotion, and removal of civil

service employees. Volk v. Hobson, 866 F.2d 1398, 1401 (Fed. Cir. 1989). Absent an

independent source of jurisdiction over the underlying agency action, the Board is not

permitted to entertain an appeal of the removal action or of any related statutory or

constitutional claims. See Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed.

Cir. 1985). Mr. Hubbard’s arguments go to the merits of the removal decision, but

because the Board lacked jurisdiction over his appeal, it was without authority to

address those arguments. And because the Board lacked jurisdiction to address the

merits of his claims, we likewise are barred from addressing those claims. Accordingly,

we affirm the Board’s dismissal of Mr. Hubbard’s appeal for lack of jurisdiction.




2009-3021                                   3
