NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3340 MARGARET M. GARRETT, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Margaret M. Garrett , of Memphis, Tennessee, pro se. Calvin M. Morrow , Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for res pondent. With him on the brief were B. Chad Bungard , General Counsel, and Jeffrey A. Gauger , Attorney. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3340

MARGARET M. GARRETT , Petitioner ,
v. MERIT SYSTEMS PROTECTION BOARD , Respondent

. Petition for review of the Merit Syst ems Protection Board in AT0752080234-I-1.

_________ __________________ DECIDED: May 7, 2009

_________ __________________ Before MICHEL, Chief Judge , DYK and MOORE, Circuit Judges

. PER CURIAM. Petitioner Margaret Garrett appeals the final decisio n of the Merit Systems Protection Board (Board). Garrett v. United States Postal Serv. , No. AT0752080234-I-1 (M.S.P.B. June 19, 2008). T he Board dismissed Ms. Garre tt’s appeal for lack of jurisdiction because she did not make a non-fr ivolous allegation that she was entitled to appeal to the Board. We affirm

. Ms. Garrett was a window clerk for the Un ited States Postal Service (USPS) in Memphis, Tennessee. She was removed fo r absence without leave and failure to meet the attendance requirements of her position. She appealed to the Board. The USPS moved to dismiss the appeal for lack of juri sdiction, arguing that Ms. Garrett was notone of the types of USPS employ ees that is entitled to appeal to the Board pursuant to 39 U.S.C. § 1005(a): Subchapter II of chapter 75 of title 5 shall apply - (i) to any preference eligible in the Postal Service wh o is an employee within the meaning of section 7511(a)(1)(B) of such title; and ( ii) to any other individual who - (I) is in the position of a supervisor or a management employ ee in the Postal Service, or is an employee of t he Postal Service engaged in personnel work in other than a purely nonconfident ial clerical capacity; and (II) has completed 1 year of curr ent continuous service in the same or similar positions. The administrative judge (AJ) issued an order to show cause explaining this requirement to Ms. Garrett and di recting her to file evidence and argument to prove that her appeal was within t he Board’s jurisdiction. In re sponse, Ms. Garrett argued that she was preference eligible bec ause she was the daughter of a veteran. The Board considered § 1005(a) as well as other possible bases for it s jurisdiction, concluded that there was no factual dispute be aring on the issue of jurisdic tion, and ruled that it lacked jurisdiction over Ms. Garrett’s appeal. Following a petition for review, the initial decision became final on June 19, 2008. Ms. Garrett now timely petitions for review. The scope of the Board's jurisdiction is a question of law, which we review de

novo

. Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008). “The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule or regulation.” Id. Ms. Garrett has the burden of proving that the Board has jurisdiction by a preponderance of the ev idence. 5 C.F.R. § 1201.56(a)(2)(i). The Board has jurisdiction ov er USPS employees in a variety of circumstances, such as those enumerated by § 1005(a). For ex ample, Ms. Garrett alle ges that she is a preference eligible. The term “preference eligible” is defined by 5 U.S.C. § 2108(3), and

2008-3340 22008-3340 3 although it includes certain veterans, widows of certain veterans, spouses of certain veterans, and so forth, it does not include ch ildren of veterans. As such, Ms. Garrett cannot rely on an alleged preferenc e eligible status to establish the Board’s jurisdiction. 1 Since she has not alleged or pr ovided any evidence of any other basis for jurisdiction, we affirm the Board’s decision that it lack ed jurisdiction over Ms. Garrett’s appeal. COSTS No costs.

1 Although Ms. Garrett complains that the USPS failed to respond to a discovery request to submit her agency file, there is no showing that such a failure caused any prejudice.