NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3211

JAMES L. KOLLER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent. James L. Koller , of Junction City, Kansas, pro se. Calvin M. Morrow , Acting Associate General Couns el, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for re spondent. With him on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3211 JAMES L. KOLLER Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________ _________ DECIDED: October 3, 2007

__________________ _________ Before MAYER and GAJARSA, Circuit Judges , and Restani, Judge

. ∗ PER CURIAM. James L. Koller (“Mr. Koller”) appeals the Merit Systems Protection Board’s (“Board”) dismissal of his appeal of a r eassignment to a non-supervisory position. Koller v. Dep’t of the Army , No. DE-315I-06-0488-I-1 (Oct. 18 , 2006). The Board determined that Mr. Koller was reassigned during his o ne-year supervisory probationary period and therefore dismissed the case for lack of jurisdiction. Id. We affirm

. BACKGROUND Mr. Koller is employed by the Department of the Army (“Agency”) in Fort Riley, Kansas. On May 16, 2005, Mr. Koller receiv ed a career-conditional appointment in the

∗ Honorable Jane A. Restani, Judge of t he United States Cour t of International Trade, sitting by designation.competitive service as a Police Officer. T he appointment was subject to completion of a one-year probationary period. During the probat ionary period, Mr. Koller received two promotions. On November 13, 2005, Mr. Koller received a promotion to the nonsupervisory position of Lead Police Officer. On January 8, 2006, Mr. Koller received a career-conditional appoint ment as a Supervisory Police Offi cer. The appointment to the supervisory position was subject to completi on of another one-year probationary period. In a memorandum dated August 21, 2006, t he Agency notified Mr. Koller that he did not demonstrate fully the qu alifications for continued em ployment in the supervisory position beyond the probationary period. The Agency based its decision on Mr. Koller’s alleged negligence that result ed in the loss of a handgun that was being held as evidence. On September 2, 2006, the Agency reassigne d Mr. Koller to his last previously held position of Lead Police Officer. Mr. Ko ller suffered a loss in grade and salary as a result of the reassignment. Mr. Koller appealed the Agency’s action to the Board, asserting that: 1) he completed the supervisory pr obationary period; and 2) he di d not act negligently with respect to the handgun. The Board determi ned that Mr. Koller did not complete the supervisory probationary period a nd therefore dismissed the case for lack of jurisdiction. In a final order, the Board denied Mr. Koller’s petition for review. Mr. Koller filed an appeal to this court fr om the Board’s decisi on. This court has jurisdiction pursuant to 28 U.S. C. § 1295(a)(9). DISCUSSION The scope of our review in an appeal from a decision of the Board is limited. Barrett v. Soc. Sec. Admin. , 309 F.3d 781, 785 (Fed. Cir. 2002). We must affirm the

2007-3211 2decision of the Board unless it is: 1) arbitr ary, capricious, an abuse of discretion, or otherwise not in accor dance with law; 2) obtained without procedures required by law, rule, or regulation having been followed; or 3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Barrett , 309 F.3d at 785. The Board’s determination that it lacks jurisdiction to adjudicate a particular case, how ever, is a question of law that we review de novo

. Id. The appellant bears the burden of proving that th e Board has jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). The scope of the Board’s jurisdiction is defined by 5 U.S.C. § 7701(a), which provides that an employee, or applicant for employment, may submit an appeal to the Board from any action which is appealable to the Board under any law, rule, or regulation. Garcia , 437 F.3d at 1327. Accordingly, the Board’s jurisdiction is not plenary but is limited to those areas specifically granted by law, rule, or regulation. Id. For example, the Board has not been granted juri sdiction over the re duction in grade of a supervisor who has not completed a supervisory probationary period if the reduction is to the grade held i mmediately before bec oming a supervisor. See 5 U.S.C. § 7512(C); 5 C.F.R. § 315.908(a). There are two types of probationary per iods in the competitive service. See 5 U.S.C. § 3321. The first type occurs upon initial appointment to a competitive position. See 5 U.S.C. § 3321(a)(1); 5 C.F.R. § 315.801. During initial probationary periods, agencies are free to terminate new hires who fail to demonstrate the qualifications for continued employment beyond the probat ionary period. 5 C.F.R. § 315.804(a). The second type occurs upon in itial appointment to a supervisory or

2007-3211 3managerial position. See 5 U.S.C. § 3321(a)(2); 5 C. F.R. § 315.901. During supervisory probationary periods, agencies are not free to te rminate first-time supervisors who fail to demonstrate the qualif ications for continue d employment in a supervisory position bey ond the probationary period. See 5 U.S.C. § 3321(b); 5 C.F.R. § 315.907. Instead, agencies must return the firs t-time supervisors to “a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted.” 5 U.S.C. § 3321(b); 5 C. F.R. § 315.907. Employees demoted during a supervisory probationary period have no appeal right to the Board unless they allege that the agency action was based on partis an political affiliation or marital status. 5 C.F.R. § 315.908; Hardy v. Merit Sys. Prot. Bd. , 13 F.3d 1571, 1573 (Fed. Cir. 1994). Mr. Koller does not allege that his demot ion was based on partisan political affiliation or marital status. In stead, Mr. Koller argues that he is entitled to appeal to the Board under 5 U.S.C. § 7513(d) because he meets the definition of an “employee” as provided in 5 U.S.C. §§ 7511(a )(1)(A)(i) or (ii). Mr. Ko ller argues that he satisfies subsection (i) because he was not servi ng a probationary peri od under an initial appointment at the time of the adverse action. See 5 U.S.C. § 7511(a)(1)(A)(i). In the alternative, Mr. Koller argues that he satisf ies subsection (ii) because he had completed one year of current continuous service at the time of the adverse action. See 5 U.S.C. § 7511(a)(1)(A)(ii). Mr. Koller cites McCormick v. Dep’t of Air Force , 307 F.3d 1339 (Fed. Cir. 2002) for the propos ition that subsections (i) and (ii) are alternative methods for meeting the definit ion of an “employee” entitled to appeal to the Board. It is irrelevant whether Mr. Koller satisf ies the definition of an “employee” under section 7511 and McCormick because he was not subj ect to an appealable agency

2007-3211 4action. Mr. Koller’s argument s with respect to sections 7511 and 7513 overlook intervening section 7512, entit led “[a]ctions covered.” 5 U. S.C. § 7512. Section 7512(C) expressly provides that the subchapter containing sections 7511 and 7513 does not apply to “the reduction in grade of a supervi sor or manager who has not completed the probationary period under section 3321(a)(2) of this title if such reduct ion is to the grade held immediately before becomi ng such a supervisor or manage r.” 5 U.S.C. § 7512(C). It is undisputed that the Agency reassigned Mr. Koller to the gr ade held immediately before becoming a supervisor. Thus, because we find that he did not complete his oneyear supervisory probationary pe riod at the time of the reassignment, Mr. Koller was not subject to an appealable agency action. Mr. Koller argues that he completed hi s supervisory probationary period based on the following facts: 1) he was serving a probationary period as a new hire under 5 C.F.R. § 315 Subpart H when the Agency pr omoted him to a supervisory position; 2) he concurrently served the probationary period as a new hire under Subpart H and a probationary period as a supervisor under 5 C. F.R. § 315 Subpart I; 3) he subsequently completed the probationary period as a new hire under Subpart H; and 4) 5 C.F.R. § 315.909(a) provides that where an employee concurrently serves probationary periods under Subparts H and I, completion of Subpart H fulfills the requirements of Subpart I. Thus, according to Mr. Koller’s reasoning, he completed both probationary periods on May 16, 2006, appr oximately four months after his promotion to the supervisory position. Mr. Koller’s reasoning, however, is bas ed on a misunderstanding of Subpart I. Generally, “[s]ervice in a nonsupervisory or nomanagerial position is not creditable”

2007-3211 5toward completion of the supe rvisory probationary period. See 5 C.F.R. § 315.906(b). Section 315.909(a) modifies this general rule under one particular circumstance: “If an employee is required to conc urrently serve both a probationary period under this subpart and a probat ionary period under Subpart H of this part, the latter takes precedence and completion of the probationary period for competitive appoint ment and [sic] fulfills th e requirements of this subpart.” This section applies where the two probationar y periods are entirely concurrent, i.e., where an individual’s in itial appointment in the competitive service is to a supervisory position. It allows agencies to terminate new supervisors, rather than demote them to non-supervisory positions they never actually hel d. Mr. Koller cannot invoke this section to arbitrarily shorten his supervisory probati onary period merely because a portion of it overlaps with his probationar y period as a new hire. Su ch an interpretation would deprive agencies of a full prob ationary period to assess the performance of first-time supervisors. In a final argument, Mr. Koller direct s the court’s attention to 5 C.F.R. § 315.802(a), which limits t he probationary period to one year that may not be extended. Mr. Koller argues t hat section 315.802(a) limits the aggregate of all careerconditional probationary periods, such that completion of a first career-conditional probationary period (e.g., for a competitive pos ition) precludes imposition of a second career-conditional probationary pe riod (e.g., for a supervisory position). Appling section 315.802(a), Mr. Koller concludes that both probationary periods en ded on the one-year anniversary of his initial appointment to a competitive position. Mr. Koller’s reasoning, however, confus es Subparts H and I. Section 315.802(a) is contained within Subpart H, which addresses probation on initial appointment to a

2007-3211 6competitive position. Se ction 315.802(a) is not c ontained within Subpart I, which addresses probation on initial appoi ntment to a supervisory position. Accordingly, section 315.802(a) restricts t he probationary period served by new hires, but it does not restrict the probationary period served by new supervisors. Thus, Mr. Koller cannot invoke this section to arbitrarily short en his probationary perio d as a new supervisor merely because he completed a one-year probationary period as a new hire. Under these circumstances, we find that Mr. Koller has not met his burden of proving by a prepon derance of the evidence that he had completed his one-year supervisory probationary period when the Agency reassigned him to his last previously held position. CONCLUSION We conclude that the Board properly deter mined that it lacked jurisdiction over Mr. Koller’s appeal because he had not completed hi s one-year supervisory probationary period when the A gency reassigned him to his last previously held position. The decision of the Board is therefore affirmed. No costs.

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