Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3242 DAVID H. GOSS, Petitioner,

v.
DEPARTMENT OF THE AIR FORCE, Respondent.

__________________________ DECIDED: April 11, 2005

__________________________ Before SCHALL, BRYSON, and GAJARSA, Circuit Judges

. PER CURIAM.

DECISION David H. Goss petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed for lack of jurisdiction his appeal of the action of the Department of the Air Force (“a gency”) terminating his employment as a probationary employee. Goss v. Dep’t of the Air Force , No. AT-315H-03-0278-I-1 (M.S.P.B. Jan. 20, 2004) (“ Final Decision ”). We affirm

.DISCUSSI ON
I. On March 25, 2002, Mr. Goss received a career-conditional appointment to the position of Electronic s Worker, WG-8, at Robins Air Force Base, Georgia. The condition of the appointment was that Mr . Goss successfully c o mplete a one-year period of probation. Mr. Goss did not com p lete the probationar y period, as a result of the agenc y terminating his employment, e ffective November 22, 2002, based on a charge that he made inappropriat e comments to another employee. Mr. Goss appealed th e agency ’ s action to the Boar d. In his initia l filing, Mr. Goss tried to establis h Board jurisdiction by al leging that, based on prior federal employment with the agency, he completed his probationary period of empl oyment on April 25, 2002. Mr. Goss asserted that he had previously received a ca reer-conditional appointment from the agency to the position of Clerk Ty pist, GS-2, effective June 22, 1976, from which he was terminated on May 6, 1977. He al so asserted that the clerk-typist position entailed duties subs tantially similar to those of the electronics-worker position. Accordingly, Mr. Goss contended that, bec ause he previous ly served elev en months with the agency as a clerk ty pist, he completed his probat ionar y period after working one month as an electronics worker. The administrative judge (“AJ”) assigned to the appeal had reservations as t o Mr. Goss’ jurisdictional argument. Accord ingly, on January 15, 2003, he issued an acknowledgment order in whic h he order ed Mr. Go ss to show cause as to why the B oard had juri sdi c ti on i n the case. Goss v. Dep’t of the Air F o rce , No. AT-315H-03- 0278-I-1 (M.S.P.B. Jan. 15, 2004) (“ Acknowledgement Order ”). The AJ informed Mr.

04-3242 2Goss that, as the petitioner, he bore the burden of establishing ju risdiction. In addition, the AJ informed Mr. Goss of the limited appeal rights of probationary employees. Id. slip op. at 2. In response, Mr. Goss alle ged that the Board had jurisdiction because his claim was based on discrimination with respect to his marital status. Howev e r, the AJ found that Mr. Goss faile d to identify the names of any married or divorced employees that were treated differently than him. The AJ cons equently issued another order giving Mr. Goss fifteen days to prov ide this information. Goss v. Dep’t of the Air Force , No. AT-315H-03-0278-I-1 (M.S.P. B. Feb. 3, 2004) (“ Order ”). On March 20, 2003, t he AJ dism issed Mr. Goss’ appeal after determining that he had not met his burden of estab lishing Board jurisdiction. Goss v. Dep’t of the Air Force , No. AT-315H- 03-0278-I-1, slip op. at 3 (M.S.P.B. Mar. 20, 2003) (“ Initial Decis i on ”). First, with respect to M r . Go ss’ argument based on prior federal employment, the AJ found that, even if the clerk-typist posit ion was substantially similar to the elect r onics-worker position, that fact would not es tablish juris d iction bec ause prior employment does not count toward an em ploy ee’s pr obationary peri od if the break in employment exceeded thirty calendar days

. Id. slip op. at 3 (citing 5 C.F.R. § 315.802 )

. Second, the AJ found that Mr. Goss had failed to mak e a non- frivolous c l aim of marital status disc rimination. T he AJ stated that an emplo y ee must allege a difference in treatment between married employees and single employees. Mr. Goss (who is single) did not meet this standard, the AJ concl uded, becaus e he failed to identify even one married employee whom the agency treated differently. Id. slip op. at 5. The AJ ’s initial dec ision bec ame the final decision of t he Board on January 20, 2004, after the Board denied Mr. Goss’ petition fo r review for failur e to meet the criteria

04-3242 3for review set forth at 5 C.F.R. § 1201.115( d). This appeal fo llowed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review of an appeal from a decision of the Board is limited to whether the Board’s decision is arbitrary, capricious, an abuse of disc retion, or otherwise not in accor dance with law; obtained witho ut procedures required b y law, rule, or regulation having been follow ed; or unsupported by substantia l evidenc e . 5 U.S.C. § 7703(c) (2000); Carson v. Dep’t of Energy , 398 F.3d 1369, 1374 (Fed. Cir. 2005). Whether the Board has jurisdic tion over an appeal is a questi on of law, which we review de novo

. Hayes v. United States Postal Serv

. , 390 F.3d 1373, 1376 (Fed. Cir. 2004). The Board’s jurisdiction to review adverse personnel actions taken against probationar y government employ ees is extremely narrow. In fact, there is no statutory basis for jurisdiction. Mastriano v. Fed. Av iation Admin. , 714 F.2d 1152, 1155 (Fed. Cir. 1983). The Office of Personnel Management has, however, provided limited appeal rights for probationar y employees who a llege they were terminated bas ed on (1) partisan political considerations or marita l status discriminati on, or (2) improper procedures , where the employee was terminat ed based on conditions arising before his appointment. 5 C.F

. R. § 315. 806; see also Mastriano , 714 F.2d at 11 55. “The probationar y employee bears t he burden throughout of establis hing jurisdiction.” Stokes v. Fed. Aviation Admin. , 761 F.2d 682, 685 (Fed. Cir. 1985).
III. For the reasons set f o rth below, we do not think Mr. Goss has shown that the Board erred in dism is sing his c a se for lack of jurisdiction. We reiterate that, in order to

04-3242 4establish jurisdiction, Mr. Go ss, as a probationary employee, 1 had to make a nonfrivolous allegation that he was terminated based on partisan political cons iderations, marital status discrimination, or c onditions arising before his appoin tment. Accordingly, Mr. Goss’ arguments relating to his allegedl y inappropriate stat ements are of no relevance to the issue of jurisdiction. Mr. Goss alleges dis c rimination based upon marital status. We held in Stokes that a probationary employee “must include in his appeal [to the Board] an allegation of marital disc rimination supported by factual assertions indicating that the allegation is not

a pro-forma pleading. A merely conclusor y pleadi ng is insufficient.” 761 F.2d at 686. Mr. Goss contends that he met this st andard because, although not by name, he identified “my co-workers” as those who rece ived fav o rable treatmen t. In addition, Mr. Goss contends that he was not required to s pecifically identify the co-workers as “single” or “married.” We ar e not persuaded by this argumen t. Assuming th at Mr. Goss was not required to “one-by- one” identify each of his co-w orkers by name and marital status, the fact remains that Mr. Goss di d not identify even one married co-worker who received favorable treatment. In order to assert a non-frivolous c l aim an employee must at a minim u m make factual allegations th at support the elements of the claim. See Hayes , 390 F.3d at 1376 (“The [MSPB] can have juri sdiction if a nd only if the petition e r makes non-frivolous allegations that satisfy the element s of the claim.”) . Therefore, in a case of alleged discrimination based on mari tal status, the employee must present

1 Mr. Goss does not challenge the Boar d’s determination that he c o uld no t count his prior federal employment toward his probationary period, and that he thus was a probationary employee.

04-3242 5factual allegations to the effect that other employees were treated differently based on their marital status. Mr. Goss has not done that in this case. 2 In addition to asserting marital status di scrimination, Mr. Goss, for the first time, alleges that his termination was wrong bec aus e the agency temporarily moved him from his pos ition as an electronics worker to a cl erk typist. M r . Go ss contends this action deprived him of a fair evaluati on as an electronics worker. This alle gation is also not sufficient to establish jurisdiction because Mr. Goss does not allege that the termination was the result of conditions ar is ing before his appoint ment, as r equired by 5 C.F.R. § 315.806. Finally, Mr. Goss alleges that several other personnel actions—such as management’s failure to ask him about his allegedly inappropri ate statements and newly disc overed memoranda written by agency personnel— w ere discriminatory in nature. Howev e r, Mr. Go ss has not alleged how t hese actions amounted to discrimination against him on t he basis of marital status or were motivated by partisan politic al considerations. In sum, because Mr. Goss failed to make a non-frivolous claim of termi nation based on marital status discrimi nation, partisan political co nsiderations, or condition s arising bef ore his appointment, we affirm. Each party shall bear its own costs.

2 Mr. Goss also contends that Stokes is not applicable to this case. We do not agree. Stokes squarely addresses t he standard for establishi ng Board jurisdiction over a claim based on marital status discrimination.

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