                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2008-3317

                                  KATHY P. WEBB,

                                                            Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.


      Kathy P. Webb, of Pine Bluff, Arizona, pro se.

      Joyce G. Friedman, Acting Associate General Counsel for Litigation, Office of the
General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent.
With her on the brief was B. Chad Bungard, General Counsel.

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                             NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        2008-3317

                                     KATHY P. WEBB,

                                                                          Petitioner,

                                             v.

                         MERIT SYSTEMS PROTECTION BOARD,

                                                                          Respondent.

Petition for review of the Merit Systems Protection Board in DA0752080159-I-1.

                             ___________________________

                             DECIDED: January 13, 2009
                             ___________________________


Before RADER, LINN, and DYK, Circuit Judges.

PER CURIAM.


          Kathy P. Webb (“Webb”) petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) dismissing her appeal for lack of jurisdiction. Webb

v. Dep’t of Army, DA0752080159-I-1 (M.S.P.B. July 3, 2008) (“Final Decision”). We

affirm.

                                     BACKGROUND

          Webb was employed as a Security Guard by the Department of the Army (“the

agency”) as a term employee at the Pine Bluff Arsenal in Arkansas. She received an

initial one-year appointment in August 2003. On August 1, 2005, documents show that

the agency extended Webb’s most recent term appointment to a period not to exceed

August 3, 2006. On July 12, 2006, the agency advised Webb that her term appointment
would not be extended and would therefore expire on August 3, 2006. The agency

explained that it could not continue to employ her because she failed to meet a

condition of employment, related to a medical condition.

       On December 28, 2007, Webb appealed the agency’s action to the Board. She

argued that she was hired for a 4-year term and that she had been terminated after 3

years, before her appointment’s expiration, due to a medical condition.            The

Administrative Judge (“AJ”) dismissed Webb’s appeal without holding a hearing. The

AJ found that all of the submitted documents supported the agency’s assertions that

Webb’s term employment was not for a 4-year term and had expired August 3, 2006.

Webb v. Dep’t of Army, DA0752080159-I-1, slip op. at 3 (M.S.P.B. Feb. 22, 2008)

(“Initial Decision”). The AJ stated that though Webb had the right to appeal adverse

actions to the Board, jurisdiction over the end of a term appointment was specifically

excluded from such actions under 5 C.F.R. § 752.401(b)(11). Id. at 4. As Webb’s

termination was “not a removal during the term of her appointment, but rather a release

at the predetermined end of the term,” the AJ stated that it was not an adverse action

within the Board’s jurisdiction. Id. (emphasis in original).

       The Initial Decision became the Final Decision of the Board when the Board

denied Webb’s petition for review. Final Decision, slip op. at 1-2. Webb then filed a

timely petition for review by this court.     We have jurisdiction over Webb’s petition

pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       Pursuant to 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless we

find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in




2008-3317                                 2
accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.         See

Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which

this Court reviews de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.

Cir. 2008). The appellant has the burden of establishing the Board’s jurisdiction. 5

C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed.

Cir. 2006) (en banc). An appellant is not entitled to a jurisdictional hearing absent non-

frivolous allegations supporting jurisdiction. Garcia, 437 F.3d at 1325.

      Though the Board has jurisdiction over adverse actions by the agency, 5 C.F.R.

§ 752.401(b)(11) specifically excludes from the definition of an adverse action a

“[t]ermination of appointment on the expiration date specified as a basic condition of

employment at the time the appointment was made.” Here, the evidence presented to

the Board to support jurisdiction uniformly showed that Webb’s term appointment ended

August 3, 2006. The Board was not required to hold the hearing Webb requested

because she did not make a non-frivolous allegation of jurisdiction. Webb’s statement

that the documentary evidence was “fake,” without supplying any evidence as to the

falsity is not a non-frivolous allegation supporting jurisdiction. See Dorrall v. Dep’t of

Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled in part on other grounds by

Garcia, 437 F.3d at 1343. Thus, there is no basis for Webb’s appeal. The Board

correctly found that it lacks jurisdiction over her dismissal at the end of a term

appointment, which was not an adverse action pursuant to 5 C.F.R. § 752.401(b)(11).




2008-3317                                3
      In addition, Webb argues that the Board’s decision failed to consider her

discrimination charges. The Board has no jurisdiction to consider discrimination when it

is unaccompanied by an appealable adverse action over which the Board has

jurisdiction. Garcia, 437 F.3d at 1342-43; Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245-

46 (Fed. Cir. 1991) (en banc).

      For the foregoing reasons, the decision of the Board is affirmed.

                                        COSTS

      No costs.




2008-3317                              4
