United States Court of Appeals for the Federal Circuit 

05-3203 

FRANCES H. THOMPSON, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

Frances H. Thompson, of Fort Washington, Maryland, pro se. 

Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit 

Systems Protection Board, of Washington, DC, for respondent. With her on the brief 

were Martha B. Schneider, General Counsel, and Rosa Koppel, Deputy General 

Counsel. 

Appealed from: United States Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit

 05-3203 

FRANCES H. THOMPSON, 

Petitioner, 

 v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

DECIDED: January 3, 2006 

__________________________ 

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges. 

NEWMAN, Circuit Judge. 

Frances H. Thompson appeals the dismissal of her appeal for lack of jurisdiction.1

 

Ms. Thomson was an employee within that part of the judicial branch whose employees 

have not been placed within the statutory jurisdiction of the Merit Systems Protection 

 

1 Thompson v. Admin. Office of the U.S. Courts, No. DC0752040704-I-1 

(M.S.P.B. October 14, 2004) (initial decision); (M.S.P.B. May 12, 2005) (final decision). 
05-3203 2 

 

Board. Her prior employment within the executive branch does not provide the absent 

jurisdiction. The dismissal of her appeal is affirmed. 

 DISCUSSION 

Ms. Thompson was employed as a personnel specialist from December 4, 1989 to 

March 3, 1995 by the United States Probation Office of the Federal Courts in the District of 

Columbia, a part of the judicial branch. Prior to holding this position, Ms. Thompson was 

employed in a personnel position from 1983 TO 1989 with the Department of Justice, a part 

of the executive branch. The Probation Office terminated Ms. Thompson's employment on 

March 3, 1995, on the ground of "lack of funds." She appealed to the MSPB on August 2, 

2004, asserting several wrongs by the agency. The Board ordered Ms. Thompson to show 

that she was an "employee" with right of appeal to the Board, as set forth in 5 U.S.C. 

§7511(a)(1) (2000).2 Ms. Thompson responded that jurisdiction attached because of her 

previous employment in a similar position with the executive branch. 

Pursuant to 5 U.S.C. §7513(d), the MSPB is authorized to receive appeals for 

"employees" in the following categories: 

5 U.S.C. §7511(a)(1) "employee" means 

(A) an individual in the competitive service -- 

(i) who is not serving a probationary or trial period under an 

initial appointment; or 

(ii) who has completed 1 year of current continuous service 

under other than a temporary appointment limited to 1 year or 

less; 

(B) a preference eligible in the excepted service who has completed 1 year 

of current continuous service in the same or similar positions -- 

2 The agency had also raised the issue of untimeliness, a ground not reached 

by the Board. 

(i) in an Executive agency; or 
05-3203 3 

(ii) in the United States Postal Service or Postal Rate 

Commission; and 

(C) an individual in the excepted service (other than a preference eligible) -- 

(i) who is not serving a probationary or trial period under an 

initial appointment pending conversion to the competitive 

service; or 

(ii) who has completed 2 years of current continuous service in 

the same or similar positions in an Executive agency under 

other than a temporary appointment limited to 2 years or less. 

The terms "competitive service" and "excepted service" are limited, with a few exceptions, to 

positions in the executive branch. 5 U.S.C. §2102(a). See Hartman v. Merit Sys. Prot. Bd., 

77 F.3d 1378, 1380-81 (Fed. Cir. 1996) (judicial branch employee has no right of appeal to 

the MSPB). Ms. Thompson was an employee of the district court, although her employment 

papers and pay are identified as originating with the Administrative Office. Applying 

Hartman, 77 F.3d at 1380, she has no right to appeal to the MSPB. 

Ms. Thompson argues that she comes within subsection (C)(ii), supra, because she 

served for more than two years in an Executive agency before her employment in the 

judicial branch. However, that is not the agency from which she was terminated. The 

statute cannot reasonably be read to provide ineligible employees of the judicial branch with 

MSPB appeal rights because of earlier service in the executive branch. 

The dismissal for lack of jurisdiction is 

 AFFIRMED.