       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
             __________________________

        MAYLASAATHI TILLACKDHARRY,
                 Petitioner,
                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
             __________________________

                     2011-3176
             __________________________

   Petition for review of the Merit Systems Protection
Board in case no. PH0752100419-I-1.
              ___________________________

              Decided: January 12, 2012
             ___________________________

    MAYLASAATHI TILLACKDHARRY, of Bronx, New York,
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 JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
             __________________________
TILLACKDHARRY   v. MSPB                                  2


    Before DYK, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
    MaylaSaathi Tillackdharry appeals from the Merit
Systems Protection Board (Board) decision dismissing her
appeal for lack of jurisdiction. Tillackdharry v. Dep’t of
State, No. PH0752100419-I-1, slip op. at 3 (M.S.P.B. May
4, 2011). For the reasons discussed below, we affirm.
    In May 2007, the U.S. Department of State (the
agency) hired Ms. Tillackdharry as a Passport Specialist
under the Federal Career Intern Program. This position
in the excepted service required her to complete a two-
year probationary period, during which she could be
terminated at any time.         In January 2009, Ms.
Tillackdharry’s supervisor informed her that she was
recommending that Ms. Tillackdharry not be retained due
to unsatisfactory performance. Ms. Tillackdharry asked
whether she could oppose the conclusions underpinning
the recommendation, but was told that while she could do
so, she would still either have to resign or be removed.
Ms. Tillackdharry resigned.
    In May 2010, Ms. Tillackdharry filed an appeal with
the Board in which she disputed the conclusion that her
performance was unsatisfactory. She argued that the
agency committed harmful procedural error by not
allowing her to defend herself by arguing the merits of her
case. In response to the government’s motion to dismiss,
the Board held that it lacked jurisdiction over Ms.
Tillackdharry’s appeal because she is not an employee
under 5 U.S.C. § 7511(a)(1), and thus dismissed her
appeal. The Board denied her subsequent petition for
review. Ms. Tillackdharry now appeals the Board’s
decision to our court.
3                                   TILLACKDHARRY   v. MSPB


    We have jurisdiction under 28 U.S.C. § 1295(a)(9).
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). Whether the Board has
jurisdiction to adjudicate an appeal is a question of law,
which we review de novo. Van Wersch v. Dep’t of Health
& Human Servs., 197 F.3d 1144, 1147 (Fed. Cir. 1999).
Ms. Tillackdharry has the burden of establishing that the
Board has jurisdiction over her appeal by a
preponderance of the evidence. Id.
    In order to appeal a removal or constructive removal
from employment to the Board, the appellant must be an
“employee” as defined in 5 U.S.C. § 7511(a)(1). Id. at
1147-48. It is undisputed that Ms. Tillackdharry does not
meet the definition of “employee” in either 5 U.S.C.
§ 7511(a)(1)(A) or (B). Section 7511(a)(1)(C) defines an
employee as:
    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
        (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.
    The Board found, and Ms. Tillackdharry does not
dispute, that she was serving a probationary period under
an initial appointment in the excepted service. The Board
TILLACKDHARRY   v. MSPB                                  4


further found that Ms. Tillackdharry had not completed
two years of current continuous service at the time of her
resignation. As a result, the Board held that that Ms.
Tillackdharry is not an employee within the meaning of 5
U.S.C. § 7511(a)(1)(C) and thus that it lacked jurisdiction
over her appeal. Ms. Tillackdharry’s appeal does not
address the Board’s jurisdictional holding, but instead
argues that the Board’s failure to consider the merits of
her case constitutes harmful procedural error.          For
example, she urges us to evaluate her workload while at
the agency to determine whether the agency correctly
found her job performance to be unsatisfactory.
Unfortunately, these arguments regarding the merits fail
to establish the Board’s jurisdiction over her appeal.
    Because Ms. Tillackdharry has not shown that the
Board’s decision dismissing her appeal for lack of
jurisdiction was erroneous, we affirm.
                          AFFIRMED
                            COSTS
   No costs.
