NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

06-3185

DONNA MILLER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________ _________

DECIDED: December 6, 2006

__________________ _________

Before GAJARSA, Circuit Judge , PLAGER, Senior Circuit Judge , and MOORE, Circuit Judge

. PER CURIAM.

The petitioner, Donna Miller, seeks revi ew of a final decision of the Merit Systems Protection Board (“Board ”) that dismissed, for lack of jurisdiction, her petition for appeal regarding termination from her career-conditional appointment with the Natural Resources Conservation Service. Miller v. Dep’t of Agric. , No. AT-0353-06- 0028-I-1 (M.S.P.B. Nov. 28, 2005) (“ Initial Decision ”). The Initial Decision became final when the Board declined to review it. Miller v. Dep’t of Agric. , No. AT-0353-06-0028-I-1(M.S.P.B. Feb. 24, 2006) (“ Final Order ”). We have considered Ms. Miller’s claims and find them without meri t. We therefore affirm the dismissal by the Board for lack of jurisdiction. BACKGROUND The petitio ner, Donna Miller, was given a career-conditional app ointment with the Natural Resources Conservation Service (“Agency ”) as an office automa tion clerk. The appointment was subject to completi on of a one year probationar y period. Before the completion of the one year probationary per iod, the Agency decided to terminate Ms. Miller’s appointment. The termination wa s based on Ms. Miller’s abse n ces from work and failure to accept her supervisor’s directives. Ms. Miller origina lly a ppealed th e Agen cy decision to the Equa l Employm ent Opportunity Commission (“EEO C”). Ms. Mille r a lleg ed the Ag e n cy violated her hum an rights, improperly retaliated against her, and vi olated public policy. The EEOC decision was unfav orable an d Ms. Miller appea led to the Boa r d alleg i ng several er rors by the EEOC. She argued that the E E OC misinter preted the Rehabilitation Act, misapplied Tennessee statutes concerning communication with state offici als, and failed to take account of witness testimony. The administrative law judge (“A LJ”) at the Board treated the filing a s a challen ge to the Agency’s failure to sele ct and/or reinstate he r. The ALJ issued an acknowled g ment order advis ing Ms. Miller that the B oard lack e d jurisdictio n over a non-selection and that the Board also lack ed juri sdict i on over a denial of reinstatement absent a non-frivolous c l aim. The acknowledgement order further advised Ms. Miller to demonstrate that her petit ion was within t he Bo ard’s jurisdiction

. Ms. Miller faile d to respond to the acknowle dgment order. The ALJ then d i smissed for

06-3185 2lack of juri sdiction be cause Ms. Miller wa s terminated during h e r probationary period with the Agency. Initial Decis i o n at 2. After the Boa r d denie d Ms. Miller’s petition fo r review, she appealed to this court. Final O r der at 2. We have j u risdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSI ON Whether the Board has jurisdiction to hear a claim is a question of law that this court reviews de novo

. Vesser v. Office of Personal Mgmt. , 29 F.3d 600, 602 (Fed. Cir. 1994). The petitioner must prove jurisdic tion by a preponderance of the evidenc e

. Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1338 (Fed. Ci r. 2006) (en banc). We have stated that: “The jurisdicti on of the Board is limited to those matters specific ally delineated by Congress or granted to it by way of regul atory authority exer cised by the OPM.” Saunders v. Merit Sys. Prot. Bd. , 757 F.2d 1288, 1290 (Fed. Cir. 1985). On appeal to this court, Ms. Mille r cont ends the Board faile d to properly apply the Rehabilitation Act, failed to consider her retaliation claim, did not apply Tenness ee statutes correctly, and did not acknowl edge witness testimony. None of these allegations estab lish ju risdiction. The Board has jurisdiction of only thos e act i ons made appealable by statute or regulation. 5 U.S.C. §§ 7512, 7513, 7701(a) (2006). Removal or termination of employment “is an appealable ac tion where the indiv i dual qualif ies as an ‘employee’ at the time of her removal by the agency.” McCormick v. Dep’t of the Air Force , 307 F.3d 1339, 1341 (Fed. Cir. 2002). The term “e mployee” is defined by 5 U.S.C. § 7511(a) , which provides: (1) "employee" means-- (A) an individual in the competitive service--

06-3185 3(i) who is not serving a probationary or trial period under an initial appointment; or (ii) who has completed 1 year of current continuous s e rvice under other than a temporary appoi ntment limited to 1 year or less; 5 U.S.C. § 7511(a) (emphasis a dded). Ms. Mille r’s ca reer-conditional appo intment wa s subject to completion of a one year probationary period. Sh e did not complete the one year probationary per iod. T herefore, she does not qualify as an “employee” and is

exc l uded from the stat utory appeals process under 5 U.S.C. §§ 7511-14. Stokes v. Fed. Aviation Admin. , 761 F.2d 682, 684 (Fed. Cir. 1985). We have stated, however, that under 5 C.F.R. § 315.806(b) , the Board will “consider appeals from agency actions adv erse to probationary employees when thos e employees allege that those acti ons were the result of partisa n p o litica l or m a rital statu s discrimination.” Id. at 684-85. Since Ms. Miller has n o t alle ged tha t the Agenc y’s actio n was based on either partisan political or ma rital status reasons, the Board properly dismissed her case fo r lack of juri sdiction. Additio nally , Ms. Miller’s retaliation and Re habilitation Act cla i ms do not c o nfer Board jurisdiction absent an allegation of marital status or parti san politic al discrimination. See, e.g. , Cruz v. Dep’t of the Navy , 934 F.2d 1240, 1244 (Fed. Cir

. 1991) (en banc) (holding discrimi nation allegations do not conf er Board j u risdiction absent an action that is otherwis e appealable to the Board); Liz e wski v. Dep’t of the Army , 15 M.S.P.R. 417, 419 (1983) (holding the Board lacked jurisdiction to decide whether probationer’s termination constitu ted physical handicap discrimination becaus e there was no alleged marital stat us or partisan political discr imination). Also, Ms. Miller

06-3185 4has not pointed to any statute or regulation t hat establis hes Board jurisdiction to decide claims bas ed on Tennessee state law. Finally, the Board must provide notice to the appellant of her burden to demonstrate jurisdiction. Burgess v. Merit Sys. Prot. Bd. , 758 F

. 2d 641, 643-44 (Fed. Cir. 1985). The Board has held that failure to inform an appellant of her jurisdictiona l burden is “magnified” if she is pro se

. Yost v. Dep’t of Health & Human Serv. , 85 M.S.P.R. 273, 277 (2000). Thus, to fulfill the notice requirement , a pro se probationar y employee must be notified that 1) she must make a non-friv olous allegation of partisan politic al or martial status di scrimination, and t hat 2) she has the burden of providing factual evidence to s u pport her entitlement to a hearing. See Burg ess , 758 F.2d at 643- 44 (holding that appellant must be notified of what is required to establish an appealable jurisdictional issue and that appellant mu st produce factual evidence to support her entitlement to a hearing); Johns v. Dep’t of Veteran’s Affairs , 83 M.S.P.R. 345, 348-49 (1999). In this case, the Agency's motion to dismis s and attached removal notice gave sufficient notice to Ms. Miller of the first requirement – that she must allege partisa n politic al or martial st atus discrimination. See J ohns , 83 M.S.P.R. at 348 (“An AJ ’s failure to pr operly inform an appellant of t he Board's jurisdictional r equirement s may not be prejudicial where t he appellant is put on notice by t he Agency' s motion to dismiss of what he has to allege to establish jurisdicti on.”). The motion to di smiss, however, failed to give notice of the second requirement – her burden to co me forward with evidence. This failure was harmless becaus e Ms. Mille r c ould not have made a claim that invoked the Board’s jurisdiction. As dis c ussed ab ov e, Ms. Miller did not presen t a claim that

06-3185 5invokes the Board jurisdiction. Moreover, ther e is no basis in th e record that Ms. Miller could establish a partisan politic al or martial status discr imination claim. CONCLUS ION For the foregoing reasons, the Board prop erly dismis sed Ms. Miller’s appeal for lack of jurisdiction. We affi rm the judgment of the Board. No costs.

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