NOTE: This disposition is nonprecedential.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 review 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 merit. We therefore affirm the dismissal by the Board for lack of 

jurisdiction. 

BACKGROUND 

The petitioner, Donna Miller, was given a career-conditional appointment with the

Natural Resources Conservation Service (“Agency”) as an office automation clerk. The 

appointment was subject to completion of a one year probationary period. Before the 

completion of the one year probationary period, the Agency decided to terminate 

Ms. Miller’s appointment. The termination was based on Ms. Miller’s absences from 

work and failure to accept her supervisor’s directives. 

Ms. Miller originally appealed the Agency decision to the Equal Employment 

Opportunity Commission (“EEOC”). Ms. Miller alleged the Agency violated her human

rights, improperly retaliated against her, and violated public policy. The EEOC decision 

was unfavorable and Ms. Miller appealed to the Board alleging several errors by the 

EEOC. She argued that the EEOC misinterpreted the Rehabilitation Act, misapplied 

Tennessee statutes concerning communication with state officials, and failed to take 

account of witness testimony. The administrative law judge (“ALJ”) at the Board treated 

the filing as a challenge to the Agency’s failure to select and/or reinstate her. The ALJ

issued an acknowledgment order advising Ms. Miller that the Board lacked jurisdiction

over a non-selection and that the Board also lacked jurisdiction over a denial of

reinstatement absent a non-frivolous claim. The acknowledgement order further 

advised Ms. Miller to demonstrate that her petition was within the Board’s jurisdiction.

Ms. Miller failed to respond to the acknowledgment order. The ALJ then dismissed for 

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lack of jurisdiction because Ms. Miller was terminated during her probationary period

with the Agency. Initial Decision at 2. After the Board denied Ms. Miller’s petition for

review, she appealed to this court. Final Order at 2. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

DISCUSSION 

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 jurisdiction by a preponderance of the evidence. 

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc). We 

have stated that: “The jurisdiction of the Board is limited to those matters specifically 

delineated by Congress or granted to it by way of regulatory authority exercised by the 

OPM.” Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985). 

On appeal to this court, Ms. Miller contends the Board failed to properly apply the 

Rehabilitation Act, failed to consider her retaliation claim, did not apply Tennessee 

statutes correctly, and did not acknowledge witness testimony. None of these 

allegations establish jurisdiction. 

The Board has jurisdiction of only those actions made appealable by statute or 

regulation. 5 U.S.C. §§ 7512, 7513, 7701(a) (2006). Removal or termination of 

employment “is an appealable action where the individual qualifies 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 “employee” is defined by 5 U.S.C. § 7511(a), 

which provides: 

(1) "employee" means-- 

(A) an individual in the competitive service-- 

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(i) who is not serving a probationary or trial period under an 

initial appointment; or 

(ii) who 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) (emphasis added). Ms. Miller’s career-conditional appointment was

subject to completion of a one year probationary period. She did not complete the one 

year probationary period. Therefore, she does not qualify as an “employee” and is

excluded from the statutory 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 adverse to probationary employees when those 

employees allege that those actions were the result of partisan political or marital status

discrimination.” Id. at 684-85. Since Ms. Miller has not alleged that the Agency’s action

was based on either partisan political or marital status reasons, the Board properly

dismissed her case for lack of jurisdiction. 

Additionally, Ms. Miller’s retaliation and Rehabilitation Act claims do not confer

Board jurisdiction absent an allegation of marital status or partisan political 

discrimination. See, e.g., Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1244 (Fed. Cir. 

1991) (en banc) (holding discrimination allegations do not confer Board jurisdiction 

absent an action that is otherwise appealable to the Board); Lizewski 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 constituted physical handicap discrimination because 

there was no alleged marital status or partisan political discrimination). Also, Ms. Miller

06-3185 4
has not pointed to any statute or regulation that establishes Board jurisdiction to decide 

claims based 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 jurisdictional 

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 probationary

employee must be notified that 1) she must make a non-frivolous allegation of partisan 

political or martial status discrimination, and that 2) she has the burden of providing 

factual evidence to support her entitlement to a hearing. See Burgess, 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 must 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 dismiss and attached removal notice gave 

sufficient notice to Ms. Miller of the first requirement – that she must allege partisan 

political or martial status discrimination. See Johns, 83 M.S.P.R. at 348 (“An AJ’s

failure to properly inform an appellant of the Board's jurisdictional requirements may not 

be prejudicial where the appellant is put on notice by the Agency's motion to dismiss of

what he has to allege to establish jurisdiction.”). The motion to dismiss, however, failed 

to give notice of the second requirement – her burden to come forward with evidence. 

This failure was harmless because Ms. Miller could not have made a claim that invoked 

the Board’s jurisdiction. As discussed above, Ms. Miller did not present a claim that

06-3185 5
invokes the Board jurisdiction. Moreover, there is no basis in the record that Ms. Miller 

could establish a partisan political or martial status discrimination claim. 

CONCLUSION 

For the foregoing reasons, the Board properly dismissed Ms. Miller’s appeal for

lack of jurisdiction. We affirm the judgment of the Board. 

No costs. 

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