NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3234

DARRALYN C. COUNCIL, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Darralyn C. Council , of Orlando, Florida, pro se. Dana DeLorenzo , Attorney, Office of the G eneral Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard , General Counsel, and Keisha Dawn Bell , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3234 DARRALYN C. COUNCIL, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Merit Systems Protection Board in DA0752090124-I-1.

__________________ _________ DECIDED: December 9, 2009

__________________ _________ Before NEWMAN, BRYSON, and MOORE, Circuit Judges

. PER CURIAM. Darralyn Council appeals from a final decis ion of the Merit Systems Protection Board (Board) dismissing his appeal for lack of jurisdiction. See Council v. Dep’t of Veterans Affairs , No. DA-0752-09-0124-I-1 (M. S.P.B. Mar. 20, 2009) (initial decision); Council v. Dep’t of Veterans Affairs , No. DA-0752-09-0124-I-1 (M .S.P.B. June 24, 2009) (final order denying petition for review). For the reas ons discussed below, we affirm

. BACKGROUND Mr. Council is a veteran of the United Stat es Air Force. He was employed by the Department of Veterans Affairs (Agency) as a GS-2005-06 Supply Clerk, a competitive service position, in the Prosthetics Service at the Veterans Affair s Medical Center in West Palm Beach, Florida. The Agency selected Mr. Council to participate in itsTechnical Career Field Trai ning Program, a program conduct ed pursuant to the Federal Career Intern Program provided for under 5 C.F.R. § 213.3202(o). On October 29, 2006, the Agency appointed Mr. Council to the position of GS-0672-07 Prosthetic Representative Trainee (Trainee). Mr. C ouncil’s Trainee position was an excepted service position. Mr. Council signed a Statement of Under standing (SOU) at the time of his appointment. The SOU provided in part that “I understand . . . I am entering into an excepted service appointment and leaving my competitive se rvice appointment.” The SOU further provided that “I will be returned to my original grade and position, or to a similar grade and position if I fail to satisfactorily comple te the training program . . . [and t]hat unsatisfactory progress may also result in return to my former position and grade, or to a similar position and former grade.” On March 3, 2007, the Agency advised Mr. Council that it was demoting him to the position of GS-1105-06 Purc hasing Agent effective May 13, 2007, less than one year after his appointment to the Trainee pos ition. Mr. Council’s Purchasing Agent position had the same grade as his original Supply Clerk position. Mr. Council filed an appeal with the Board challengi ng his removal from the Trai nee position. The agency filed a motion to dismiss, ar guing that the Board lacked ju risdiction over Mr. Council’s appeal. The administrative judge (AJ) issued an in itial decision dismissing Mr. Council’s petition for lack of jurisdiction. The AJ observed that, pursuant to 5 U.S.C. § 7513(d), Mr. Council could appeal his demotion to the Board if he qual ified as an “employee” at the time of his demotion. T he statute provides in relevant part that “’employee’ means

2009-3234 2. . . a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions.” 5 U.S.C. § 7511(a)(1)(B). Mr. Council had been in the Tr ainee position for less than on e year as of the date of his demotion. Therefore, the AJ compared Mr. Council ’s Supply Clerk and Trainee positions to establish whether those positi ons were “the same or similar.” The AJ determined that the positions differed in multiple respects. The positions were in different competitive levels, involved di fferent duties, and required different qualifications. Further, the AJ determined t hat the positions could not be interchanged without significant training or undue interruption of the work. The AJ concluded that the Supply Clerk and Trainee positions were not “the same or similar” and, therefore, that Mr. Council had not shown that he had “complet ed 1 year of current continuous service in the same or similar positions” at the time of his demotion. Thus, the AJ found that Mr. Council did not qualify as an “emp loyee” who was entitled to appeal his demotion to the Board. Alternatively, the AJ determined that it lacked jurisdiction over Mr. Council’s appeal because Mr. Council had vol untarily accepted his reduction in grade by signing the SOU. The AJ’s initial decision became final after th e Board denied Mr. Council’s petition for review. See Council v. Dep’t of Veterans Affairs , No. DA-0752-09-0124-I-1 (M.S.P.B. June 24, 2009). DISCUSSION Mr. Council appeals from the Board’s final decision, and we have jurisdiction under 28 U.S.C. § 1295(a)(9). 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

2009-3234 3followed; or (3) unsupported by substantial evidence.” 5 U. S.C. § 7703(c). We review “questions of law and determinations of juri sdiction without deference to the Board.” Carley v. Dep’t of the Army , 413 F.3d 1354, 1356 (Fed. Cir. 2005). On appeal, Mr. Council ar gues that he had met the requirements of being an “employee” while he was employed in the com petitive service, prior to his appointment to the Trainee position. Mr. Council points to an alternative definition of “employee” under the statute, “an individu al in the competitive servic e . . . who has completed 1 year of current continuous service under ot her than a temporary appoi ntment limited to 1 year or less.” 5 U.S.C. § 7511(a)(1)(A). However, whether Mr. Council qualified as an “employee” in his former competitive se rvice position is irrelevant; he may only appeal his removal from the Trai nee position if he was an "emp loyee" at the time of his removal by the Agency. See, e.g. , Van Wersch v. Dep't of Health & Human Servs. , 197 F.3d 1144, 1147 (Fed. Cir. 1999). As the AJ determined, once Mr. Council was appointed to the Trainee excepted service po sition he qualified as an “employee” only if he had “completed 1 year of current conti nuous service in the same or similar positions.” 5 U.S.C. § 7511(a )(1)(B). The AJ evaluated the differences between Mr. Council’s Supply Clerk and Trainee positions , and substantial evidence supports the AJ’s conclusion that these pos itions were not “the same or similar.” Therefore, the Board properly determined that it lacked jurisdiction over Mr. Council’s appeal. Mr. Council also appeals the alternative basis on which the AJ determined that the Board lacked jurisdiction, arguing that his signing of the SOU did not render his demotion “voluntary.” Given that the Board correctly determined that it lacked jurisdiction because Mr. Council failed to meet the statutory definiti on of “employee,” we

2009-3234 42009-3234 5 need not reach this argument. Mr. Council fu rther argues that the Agency demoted him in retaliation for his act of filing a formal complaint of discrimination with the Equal Employment Opportunity Commission. However, because the Board lacked jurisdiction over Mr. Council’s action it could not consider his retaliation claims related to that action. See, e.g. , Saunders v. Merit Sys. Prot. Bd. , 757 F.2d 1288, 1290 (Fed. Cir. 1985) (“Section 2302(b) [5 U.S.C. § 2302(b), defining prohi bited personnel actions] is not an independent source of appellate juri sdiction and does not it self authorize an appeal.”). For the foregoing reasons, we affirm the fi nal decision of the Board dismissing Mr. Council’s petition for lack of jurisdiction. COSTS No costs.