NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3126

CARLOS A. RAMOS, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF HOMELAND SECURITY, Intervenor.

Carlos A. Ramos , of Brownsville, Texas, pro se. Jeffrey A. Gauger , Attorney, Office of the G eneral Counsel, Merit Systems Protection Board, of Washington, DC, for responde nt. With him on the brief were B. Chad Bungard , General Counsel, and Keisha Dawn Bell , Deputy General Counsel. Stacey K. Grigsby , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r intervenor. With her on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3126 CARLOS A. RAMOS, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent and DEPARTMENT OF HOMELAND SECURITY, Intervenor.
Petition for review of the Merit System s Protection Board decision DA-0752-08-0539-I1.

______________________________ DECIDED: November 6, 2009

______________________________

Before LOURIE, FRIEDMAN, and PROST, Circuit Judges

. PER CURIAM
The pro se petitioner, Carlos A. Ramos, challenges th e Department of Homeland Security (“Department”)’s termination of him during what was a probationary employment with that agency. The Merit Systems Protecti on Board (“Board”) dismissed his appeal from that action for lack of jurisdiction. We affirm.I Ramos served on active duty with t he Navy from 1992 until his honorable discharge in 1996. In April 2007, pursuant to the Federal Career Internship Program, the Department appointed Ramos to the exc epted service as a Customs and Border Protections Officer. Appoin tments under that program, gener ally, are for two years. See 5 C.F.R. § 213.3202(o)(1). The governing regulations state that “service as a career intern confers no rights to further Feder al employment in either the competitive or excepted service upon the expiration of the in ternship period,” but “[c]ompetitive civil service status may be granted to career in terns who successfully complete their internships and meet all qualif ication, suitability, and pe rformance requirements.” Id. at § 213.3202(o)(6)–(o)(6)(i). Following an altercation wh ile on duty, the Departm ent terminated Ramos in August 2008, after approximatel y sixteen months of work. The letter notifying Ramos of his termi nation erroneously informed him that he had “the right to appeal this ac tion to the Merit Systems Pr otection Board.” Ramos did so. The Board, however, dism issed the appeal for lack of jurisdiction. In his initial decision, which became final when the B oard refused to review it, the Board’s administrative judge ruled that the Board la cked jurisdiction over the appeal because Ramos (1) was a probationary employee and (2) was not a preference eligible.
II In his appeal documents, Ramos argues the merits of his case. Namely, he contends that the Department improperly terminated him and avoids the jurisdictional ruling on which the Board based its dismissa l of his appeal. As he states in his

2009-3126 2response to the Department’s br ief: the “actions of the Respondent (MSPB) are not in question, but the actions of the Intervenor (DHS) are. . . . [The] jurisdictional issue . . . is not in question by Mr. Ramos.” Before an adjudicative tribunal like the Board may consider the merits of the case, it first must establish that it has ju risdiction to do so. The Board has “only that jurisdiction conferred on it by Congress.” Cruz v. Dep’t of the Navy , 934 F.2d 1240, 1243 (Fed. Cir. 1991). It may entertain only thos e appeals authorized by law, rule or regulation. See 5 U.S.C. § 7701(a); Artmann v. Dep’t of Interior , 926 F.2d 1120, 1122 (Fed. Cir. 1991). The Board’s jurisdic tion cannot be expa nded by an agency’s misstatements or erroneous notice of appeal rights. See Office of Pers. Mgmt. v. Richmond , 496 U.S. 414, 419–20, 432–33 (1990). The Board has jurisdiction ov er appeals by “an employee.” See 5 U.S.C. § 7701(a). With limited exceptions not invo lved here, only “employees” may appeal to the Board. See, e.g. , United States v. Connolly , 716 F.2d 882, 886 (Fed. Cir. 1983). For purposes of this appeal, an “employee” is defined as “a prefer ence eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions” or “an in dividual in the excepted serv ice (other than a preference eligible) . . . who is not serving a probationar y or trial period under an initial appointment pending conversion to the competitive service.” See 5 U.S.C. § 7511(a)(1)(B)–(C)(i). Ramos was an individual in the except ed service who had so served for approximately sixteen months. Therefore, for the Board to have had jurisdiction over his appeal, he must either not have been servi ng a probationary or trial period under an initial appointment pending conversion to the competitiv e service, or he must have been

2009-3126 3a preference eligible. The Board correctly held that Ramos did not come within either category. Although Ramos’ Departmental appointment was not described as a probationary one, it was precis ely that. Ramos was hired under the Federal Career Internship Program, which, as we have noted, provides for initial appointments for two years. Although individuals who successfully complete such internships “may be granted” “[c]ompetitive civil se rvice status,” such service “confers no rights to further Federal employment in either the competitive or excepted service upon the expiration of the internship period.” Indeed, as the Board stated, “[i]n his init ial appeal, the appellant noted that he was terminated duri ng his probationary period.” The Board thus correctly held that because Ramos was terminated dur ing his probationary period, it had no jurisdiction over his appeal under 5 U.S.C. § 7511(a)(1)(C)(i). The only other statutory basis for Board jurisdiction would have been that Ramos was a “preference eligible” veteran as defined in 5 U.S.C. § 2108(3)(A). That provision provides that the term (which incorporates the definition of “v eteran” in section 2108(1)(A)), “means an individual who . . . se rved on active duty in the armed forces during a war, in a campai gn or expedition for whic h a campaign badge has been authorized, or during the peri od beginning April 28, 1952, and ending July 1, 1955; . . . . and who has been separated from the armed forc es under honorable conditions.” Since Ramos did not serve in the Navy during a declared war or during the applicable time period, he could be classified as a preference eligible under this provision only if he had served in a campaign or expedition for wh ich a campaign badge has been authorized.

2009-3126 42009-3126 5 Ramos seeks such status on the ground that during his military service he was awarded the Kuwait Liberation Medal. This medal was not an “authorized” “campaign badge” under that statutory provision, however, because it was issued not by the United States, but by either Saudi Arabia or Kuwait. The stat ute “does not bestow veteran status upon those awarded a badge by a foreign country.” See Perez v. Merit Systems Protection Bd. , 85 F.3d 591, 594 n.3 (Fed. Cir. 1996). On this record, the Board correctly conc luded that it lacked jurisdiction over Ramos’ appeal because (1) he was terminated during his pr obationary period and (2) he was not a preference eligible. For the latter reason, the Board necessarily had no jurisdiction over his appeal under the Vete rans Employment Opportunity Act, which covers only preference eligibles. See 5 U.S.C. § 3330a; Campion v. Merit Systems Protection Bd. , 326 F.3d 1210, 1213–14 (Fed. Cir. 2003). CONCLUSION The decision of the Board dismissing Ra mos’ appeal for lack of jurisdiction is
AFFIRMED

.