NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3021 

DENNIS HUBBARD, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

and 

DEPARTMENT OF THE INTERIOR, 

 Intervenor. 

Dennis Hubbard of Chadron, Nebraska, pro se. 

Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems 

Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad 

Bungard, General Counsel, and Jeffrey A. Gauger, Attorney. 

Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for intervenor. With her on the 

brief were Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. 

Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3021 

DENNIS HUBBARD, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent, 

and 

DEPARTMENT OF THE INTERIOR, 

 Intervenor. 

Petition for review of the Merit Systems Protection Board 

in DE075208027-I-1. 

___________________________ 

DECIDED: April 6, 2009 

___________________________ 

Before BRYSON, CLEVENGER, and LINN, Circuit Judges. 

PER CURIAM. 

DECISION 

Dennis Hubbard petitions for review of the decision of the Merit Systems 

Protection Board dismissing his appeal for lack of jurisdiction. We affirm. 
BACKGROUND 

 Mr. Hubbard was employed for almost 30 years as a teacher at Pine Ridge High 

School, which is located on the Pine Ridge Indian Reservation in South Dakota. In that 

capacity, he worked for the Bureau of Indian Education, an agency within the 

Department of the Interior. He was removed from his position on May 20, 2007, based 

on his conviction for off-duty criminal conduct. 

 Mr. Hubbard appealed the removal decision to the Merit Systems Protection 

Board, claiming that he had been denied the protections of 25 U.S.C. § 2012(e) and had 

been discriminated against on the basis of his age. The Bureau of Indian Education 

filed a motion to dismiss the appeal for lack of subject matter jurisdiction under 25 

U.S.C. § 2012(a), which provides that individuals appointed to an “education position” 

within the Bureau after November 1, 1979, shall be excepted from the civil service rules 

governing the removal of federal employees. See 25 U.S.C. § 2012(a), (o), (p). The 

administrative judge who was assigned to the appeal issued an order directing the 

parties to submit evidence pertaining to Mr. Hubbard’s tenure in his position. Mr. 

Hubbard produced his most recent Notification of Personnel Action, Standard Form 50-

B (“SF-50”), which indicated a service computation date of August 26, 1978. The 

Bureau responded by providing the administrative judge with all of Mr. Hubbard’s SF50s, dating back to when he was first hired in March 1978. Those materials showed 

that Mr. Hubbard served under a series of temporary appointments for the first two 

years of his teaching career, before being terminated on May 30, 1980, due to “lack of 

work.” Three months later, the Bureau rehired Mr. Hubbard as a contract “educator” 

pursuant to 25 U.S.C. § 2012(p). The administrative judge dismissed the appeal based 

2009-3021 2 
2009-3021 3 

on the evidence in the record, and the full Board denied review. Mr. Hubbard now 

petitions for review by this court. 

DISCUSSION 

 Mr. Hubbard does not challenge the Board’s conclusion that the position from 

which he was removed was an “education position” within the meaning of 25 U.S.C. 

§ 2012(p) and that his appointment to that position did not occur until after November 1, 

1979. Thus, there is no dispute that Mr. Hubbard falls within the class of individuals that 

Congress has excluded from the coverage of those provisions of the Civil Service 

Reform Act of 1978 that relate to the appointment, promotion, and removal of civil 

service employees. Volk v. Hobson, 866 F.2d 1398, 1401 (Fed. Cir. 1989). Absent an 

independent source of jurisdiction over the underlying agency action, the Board is not 

permitted to entertain an appeal of the removal action or of any related statutory or 

constitutional claims. See Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. 

Cir. 1985). Mr. Hubbard’s arguments go to the merits of the removal decision, but 

because the Board lacked jurisdiction over his appeal, it was without authority to 

address those arguments. And because the Board lacked jurisdiction to address the 

merits of his claims, we likewise are barred from addressing those claims. Accordingly, 

we affirm the Board’s dismissal of Mr. Hubbard’s appeal for lack of jurisdiction.