NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

DAVID FALL,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2022-1428

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-315H-22-0003-I-1.

______________________ 

Decided: June 14, 2022

______________________ 

DAVID FALL, Littleton, CO, pro se.

 CALVIN M. MORROW, Office of the General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by KATHERINE 

MICHELLE SMITH. 

 ______________________ 

Before NEWMAN, STOLL, and STARK, Circuit Judges.

PER CURIAM.

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2 FALL v. MSPB

David Fall appeals the Merit Systems Protection 

Board’s (“Board”) decision dismissing his appeal of the Department of the Treasury’s (“agency”) decision terminating 

him. We affirm.

I 

On October 26, 2020, the agency appointed Mr. Fall to 

a career-conditional competitive service position as a Contact Representative for the Internal Revenue Service

(“IRS”). The appointment was subject to completion of a 

one-year probationary period.

On July 30, 2021, the agency informed Mr. Fall that he 

needed to improve his performance to avoid an unsuitability determination and placed him on a performance action 

plan. On September 28, 2021, after concluding that Mr. 

Fall had not improved his performance sufficiently, the 

agency issued a notice of termination based on 5 C.F.R. 

§ 315.804, which concerns termination of probationary employees for unsatisfactory performance or conduct. Mr. 

Fall’s termination was effective October 1, 2021, which was 

during his one-year probationary period. 

On October 1, 2021, Mr. Fall appealed to the Board, 

contending “that the procedures used in making the determination [that he be terminated] were unfair and unjust 

based on the circumstances and final outcome.” Supplemental Appendix (“S.A.”) 17. In an order, the administrative judge informed Mr. Fall that the Board may lack 

jurisdiction because probationers in the competitive service 

with less than one year of non-temporary current continuous service have limited rights to appeal. Mr. Fall did not 

respond to the administrative judge’s order.

On November 1, 2021, the administrative judge issued 

her initial decision, dismissing Mr. Fall’s appeal for lack of 

jurisdiction. On December 6, 2021, that decision became 

the final decision of the Board. Mr. Fall timely appealed.

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FALL v. MSPB 3

We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 

5 U.S.C. § 7703(b)(1)(A). 

II

On review, we must affirm 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. See 5 

U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin., 309 F.3d 781, 

785 (Fed. Cir. 2002). We review de novo whether the Board 

had jurisdiction to adjudicate a case. See Barrett, 309 F.3d 

at 785. The appellant generally bears the burden of proof 

by a preponderance of the evidence with respect to the 

Board’s jurisdiction. See 5 C.F.R. § 1201.56(b)(2)(i)(A). 

The Board’s jurisdiction is limited to appeals based on 

a “law, rule, or regulation” that provides an employee with 

an appeal right. 5 U.S.C. § 7701(a); see also Garcia v. Dep’t 

of Homeland Sec., 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en 

banc).

Two statutory provisions and one regulation are relevant to determining if Mr. Fall has such a right. First, 5 

U.S.C. § 7513(d) permits an employee to appeal a removal 

taken to promote the efficiency of the service. Second, 5 

U.S.C. § 4303(e) permits an employee to appeal a removal 

based on unacceptable performance. But neither statute 

grants any appeal rights to removed probationary employees in the competitive service. See 5 U.S.C. § 4303(f)(2), 

7511(a)(1)(A). Third, 5 C.F.R. § 315.806 permits a probationary employee to appeal a termination based on 

§ 315.804 or § 315.805. Section 315.804 concerns termination of probationers for unsatisfactory performance or conduct. Section 315.805 concerns termination of probationers 

for conditions arising before appointment.

Regardless of whether the termination was based on 

§ 315.804 or § 315.805, an appeal under § 315.806 is 

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4 FALL v. MSPB

possible only if (1) the employee alleges her termination 

was based on partisan political reasons or marital status 

or (2) the agency proposed to terminate the probationary 

employee for reasons based in whole or in part on conditions arising before her employment and the agency failed 

to follow the procedural requirements of § 315.805 (which 

include notice of proposed adverse action, opportunity to 

respond, and notice of any adverse decision). See 5 C.F.R. 

§§ 315.806, 315.804, 315.805.

We hold that the Board properly dismissed Mr. Fall’s 

appeal for lack of jurisdiction. None of Mr. Fall’s arguments persuade us otherwise. 

First, Mr. Fall contends that the Board violated 

§ 315.804, by failing to notify him in writing as to why he 

was being terminated and the effective date of termination. 

According to Mr. Fall, the agency instead subjected him to 

“various vague and confusing criticisms such as you’re not 

‘cut out’ for this job and ‘you won’t be around’ before being 

plac[ing him] on an invalid and illegal performance improvement plan.” Opening Br. 4.

However, as outlined above, Mr. Fall’s appeal rights 

are limited by § 315.806, which permits a probationary employee to appeal certain termination decisions to the Board 

only if the employee alleges (1) discrimination based on 

partisan political reasons or marital status or (2) violation 

of the procedural requirements of § 315.805, which concerns termination based in whole or in part on pre-appointment conditions. There is no indication in the record of any 

such discrimination or termination based on any pre-appointment conditions. As a result, the Board correctly determined that it lacked jurisdiction here.1

1 Moreover, if we were to address this argument on 

the merits, Mr. Fall’s submissions to this Court indicate 

that the agency provided him with a letter indicating why 

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FALL v. MSPB 5

Second, Mr. Fall contends that he should be constructively classified as an employee and that his placement on 

a performance improvement plan violated § 315.804. Citing the Office of Personnel Management’s (“OPM”) website, 

Mr. Fall asserts that such plans are not appropriate for 

probationers because the entire probationary period is a de 

facto performance improvement plan. Mr. Fall contends 

that the performance improvement plan subjected him to 

an additional layer of scrutiny, which made his job more 

difficult and permitted management to build a stronger 

case for termination.

Again, Mr. Fall’s arguments run afoul of § 315.806, 

which limits a terminated probationary employee’s right to 

appeal to specific scenarios not present here. Mr. Fall’s arguments cannot provide jurisdiction where it is otherwise 

lacking. See 5 U.S.C. § 7701(a) (requiring appealable action be based on “law, rule, or regulation”).2

Third, Mr. Fall contends that his situation was governed by Article 40 of the National Agreement between the 

National Treasury Employees Union (“NTEU”) and the 

IRS. Collective bargaining agreements, such as the 

he was being terminated and the effective date of his termination. Document 9-5 at pp. 6-7 (Sept. 28, 2021 letter 

notice of decision to terminate).

2 Even if the Board had jurisdiction, the website at 

issue detracts from Mr. Fall’s position. It confirms that an 

agency need not afford a probationary employee any opportunity to improve but that such employees “should receive 

closer supervision, instruction, and training as needed.” 

See Frequently Asked Questions: Employee Relations, Response to Do I Have to Give a Probationary/Trial Employee 

an Opportunity to Improve?, OPM (last visited June 6, 20

22), https://www.opm.gov/faqs/topic/employeerelations/index.aspx. That is precisely what occurred here.

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6 FALL v. MSPB

National Agreement, ordinarily cannot confer Board jurisdiction that is otherwise lacking. See, e.g., Smith v. Merit 

Sys. Prot. Bd., 813 F.2d 1216, 1218-19 (Fed. Cir. 1987); see 

also Wilson v. Merit Sys. Prot. Bd., 484 F. App’x 561, 562-

63 (Fed. Cir. 2012) (finding Board lacked jurisdiction under 

§ 315.806 and rejecting appellant’s reliance on NTEU collective bargaining agreement for jurisdiction). 

Fourth, Mr. Fall argues that the Board improperly dismissed based on Title 5, Chapter 75 of the U.S. Code. Mr. 

Fall contends that the National Agreement governs his situation and provides that Title 5, Chapter 43 controls. However, as mentioned above, the result would have been the 

same had the Board evaluated Chapter 43. Both Chapter 

75 and Chapter 43 narrowly define an “employee” to exclude a probationary employee, such that a probationary 

employee has no statutory right to appeal to the Board. See

5 U.S.C. §§ 7513(d), 7511(a)(1)(A), 4303(e), (f)(2).

We have considered Mr. Fall’s remaining arguments – 

including those relating to non-receipt of unemployment 

benefits and the impact of the COVID-19 pandemic, neither of which he appears to have raised with the Board – 

and find they do not alter the outcome here.

III

For the foregoing reasons, we affirm the Board’s decision.

AFFIRMED

COSTS

No costs.

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