N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
FRANCIS YOMI,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

______________________

2023

- 2086

______________________
Petition for review of the Merit Systems Protection Board in No. SF

- 0752

- 16

- 0764 -I- 1.

______________________

Decided: December 8, 2023

______________________

F RANCIS Y OMI , Santa Fe, NM, pro se.

A LLISON J ANE B OYLE , Office of General Counsel,United States Merit Systems Protection Board, Washington, DC, for respondent.

______________________

Before M OORE
, Chief Judge

, C LEVENGER and S TARK
, Circuit Judges

. P ER C URIAM

. Case: 23-2086 Document: 29 Page: 1 Filed: 12/08/2023YOMI v. MSPB 2

Francis Yomi appeals a decision of the Merit Systems Protection Board (Board) dismissing his appeal for lack of jurisdiction. For the following reasons, we affirm

. B ACKGROUND

Mr. Yomi was hired to the competitive service position of Physical Science Techn ician by the Department of the Navy on July 7, 2014 . S. Appx. 7– 8. 1 His employment was subject to a one

- year probationary period. Id. at 76. On August 28, 2014, management officials informed Mr. Yomi he was being terminated for poor performance. Id. at 21

. In response, Mr. Yomi resigned, effective the same date

. Id.

Mr. Yomi filed an administrative appeal to the Board, alleging the Navy breached his employment contract

, failed to provide him with a termination letter, and “forced [him] to resign in li eu of terminating him .” Id. at 21

– 23. The administrative judge (AJ) issued an initial decisiondismissing Mr. Yomi’s appeal for lack of jurisdiction because Mr. Yomi failed to non

- frivolously allege h e had qualifying appeal rights as a probationary employee

. Id. at 7–
10. Specifically, t he AJ concluded Mr. Yomi was not an “employee” with appeal rights under 5 U.S.C. § 7511(a)(1)

, and he failed to make allegations that would qualify him for the limited appeal rights for probationary employees under 5 C.F.R. § 315.80 6. Id. at 8– 9. The AJ also concluded, to the exten t Mr. Yomi was alleging discrimination or retaliation, the Board did not have jurisdiction because he did not allege an otherwise appealable action. Id.

Mr. Yomi filed a petition for review with the Board

. Id.

at 79

– 85

. The Board denied Mr. Yomi’s petition for review and affirmed the AJ’s initial decision. Id. at 1–2. Mr. Yomi

1 “S. Appx.” refers to the supplemental appendix attached to Respondent’s Informal Brief. Case: 23-2086 Document: 29 Page: 2 Filed: 12/08/2023YOMI v. MSPB 3

appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).

D ISCUSSION
We must uphold 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. § 77 03(c). Whether the Board lacks jurisdiction is a question of law we review de novo. Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995).

To establish Board jurisdiction , the individual appealing a personnel action must qualify as an “employ ee” under 5 U.S.C. § 7511(a)(1). McCormick v. Dep’t of Air Force , 307 F.3d 1339, 134 0–4 1 (Fed. Cir. 2002) ; see also 5 U.S.C. § 7513(d)

. As an individual in competitive service, Mr. Yomi qualifies as an employee if he “is not serving a probationary or trial period under an initial appointment” or “has completed 1 year of current continuous service under other than a temporary appointment li mited to 1 year or less.” 5 U.S.C. § 7511(a)(1)(A). The Board properly concluded Mr. Yomi does not meet this definition. At the time of his resignation, Mr. Yomi was “serving a probationary

. . . period.” See 5 U.S.C. § 7511(a)(1) (A)(i). His employmen t ended on August 28, 2014

— only seven weeks into his

one

- year probationary period. S. Appx. 8, 21. He therefore does not qualify as an “employee” with statutory appeal rights under § 7511(a)(1)(A).

As a p robationary employee , Mr. Yomi may only appeal to the Board under 5 C .F.R. § 315.806

. Mastriano v. F ed.
A viation A dmin

. , 714 F.2d 1152, 1155 (Fed. Cir. 1983)(“The only cognizable right of appeal by a probationary employee to the [Board] is contained in .

. . 5 C.F.R. § 315.806. ”). To appeal u nder this regulation, Mr. Yomi must allege (1) his termination “was based on partisan political reasons or marital status”; or (2) the agency proposed Case: 23-2086 Document: 29 Page: 3 Filed: 12/08/2023YOMI v. MSPB 4

termination based at least in part on pre

- appointment reasons and failed to follow the procedural require ments of 5 C.F.R. § 315.805 (i.e., notice of the proposed adverse action,an opportunity to respond, and notice of the adverse decision). 5 C.F.R. § 315.806.

Mr. Yomi does not allege he was terminated based on partisan political reasons or marital statu s , or that the Navy proposed his termination based on pre

- appointment

reasons

. See S. Appx. 21

– 23

. Mr. Yomi has therefore not established appeal rights under 5 C.F.R. § 315.806

. Accordingly, t he Board properly dismissed Mr. Yomi’s appeal for lack of jurisdiction. 2

C ONCLUSION
We have considered Mr. Yomi’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s dismissal for lack of jurisdiction.

AFFIRMED

C OSTS

No costs.

2 Mr. Yomi argues the Navy terminated him in retaliation for protected whistleblowing disclosures. Appellant’s Informal Opening Br., Attachment 1 at 1, 3– 4. This claim , however, do es not confer independent Board jurisdiction absent an otherwise appealable action. See Cruz v. Dep ’ t of the Navy

, 934 F.2d 1240, 1245 (Fed. Cir. 1991) (en banc)

. As discussed above, Mr. Yomi has failed to allege

any such appealable action. The Board properly concluded that to the extent Mr. Yomi alleged a retaliation claim

, it lacked j urisdiction over such claim . S. Appx. 9. Case: 23-2086 Document: 29 Page: 4 Filed: 12/08/2023