NOTE: This disposition is nonprecedential.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

______________________ 

FRANCIS YOMI, Santa Fe, NM, pro se.

 ALLISON JANE BOYLE, Office of General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent.

______________________ 

Before MOORE, Chief Judge, CLEVENGER and STARK, Circuit 

Judges.

PER CURIAM. 

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

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. 

BACKGROUND

Mr. Yomi was hired to the competitive service position 

of Physical Science Technician 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 lieu of terminating him.” Id. at 21–23. 

The administrative judge (AJ) issued an initial decision 

dismissing Mr. Yomi’s appeal for lack of jurisdiction because Mr. Yomi failed to non-frivolously allege he had qualifying appeal rights as a probationary employee. Id. at 7–

10. Specifically, the 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. § 315.806. Id. at 8–9. The AJ also concluded, to the extent 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: 12/08/2023
YOMI 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).

DISCUSSION

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. § 7703(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 “employee” under 

5 U.S.C. § 7511(a)(1). McCormick v. Dep’t of Air Force, 307 

F.3d 1339, 1340–41 (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 limited 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 employment 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 probationary employee, Mr. Yomi may only appeal 

to the Board under 5 C.F.R. § 315.806. Mastriano v. Fed. 

Aviation Admin., 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 under 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: 12/08/2023
4 YOMI v. MSPB

termination based at least in part on pre-appointment reasons and failed to follow the procedural requirements 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 status, 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, the Board properly dismissed Mr. Yomi’s appeal 

for lack of jurisdiction.2

CONCLUSION

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

COSTS

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, does 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 jurisdiction over such claim. S. Appx. 9.

Case: 23-2086 Document: 29 Page: 4 Filed: 12/08/2023