NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3236

ELENA A. LOUCKS, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Elena A. Loucks , of San Diego, California, pro se. Dana DeLorenzo , Attorney-Advisor, 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 Keisha Dawn Bell , Deputy General Counsel.

Appealed from: Merit S ystems Protection BoardNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3236 ELENA A. LOUCKS, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Merit Syst ems Protection Board in SF315H090170-I-1.

______ ____________________ DECIDED: January 6, 2010

______ ____________________ Before LOURIE, LINN, and MOORE, Circuit Judges

. PER CURIAM. Elena A. Loucks (“Loucks”) seeks review of a final decision of the Merit Systems Protection Board (“Board”) dismi ssing her appeal of a decision of the Department of the Navy (“Navy”), which terminated Loucks from her position as a probat ionary employee. Loucks v. Dep’t of the Navy , SF315H090170-I-1 (M.S.P.B. May 27, 2009) (“Final Decision ”). Because the Board correctly determi ned that it lacked jurisdiction over Loucks’s appeal, we affirm

. Loucks held a series of civilian posit ions within the Navy between 2000 and 2008, the most recent of which is at issue in this appeal. She previously worked as a Food Service Worker, NA-2 (September 11, 2000 to May 20, 2001); a RecreationalAssistant, NF-2 (October 1, 2001 to November 1, 2002); a Sales Store Checker, GS-3 (November 4, 2002 to April 14, 2004); an untitled worker in the Navy Exchange Service Command Optical Shop (March 30, 3005 to Ap ril 4, 2005); and a H ealth Technician, GS-4 (November 27, 2006 to October 1, 2007) . On November 26, 2007, she was hired as a Health Technician, GS-6, under a car eer-conditional appoint ment at the Navy Medical Center, San Diego, Cali fornia. The appointment was subject to the completion of a one-year probationary peri od, beginning November 26, 2007. On November 18, 2008, before the probationary period was completed, Loucks was terminated due to inadequate performance. On December 16, 2008, Loucks filed an appeal at the Boar d, challenging the Navy’s termination of her most recent posit ion as a Health Technician. The Board dismissed the appeal for lack of jurisdic tion because she was a probationary employee at the time of her termination and was th us not an “employee” within the meaning of 5 U.S.C. § 7511(a)(1) (2006). Loucks v. Dep’t of the Navy , SF315H090170-I-1 (M.S.P.B. Feb. 11, 2009) (“Initial Decision ”). Under 5 U.S.C. § 7511(a)(1)(ii), a probationary employee must complete “1 year of current continuous service under other than a temporary appointment lim ited to 1 year or less” in order to qualify as an “employee” over whom the Board has jurisd iction. Under 5 C.F. R. § 315.802(b) (2009), a probationary employee’s “[p]rior Federal civ ilian service . . . counts toward completion of probation when the prior service: (1) Is in the same agency, e. g., Department of the Army; (2) Is in the same line of work ( determined by the employee’s actual duties and responsibilities); and (3) Contains or is fo llowed by no more than a single break in service that does not exceed 30 calendar days.” Because Loucks had a break in

2009-3236 2service of approximately 56 days before bei ng hired for her most recent careerconditional appointment, the B oard concluded that her prio r service could not count towards the completion of the probat ionary period. Initial Decision at 7. Accordingly, the Board held that it lacked ju risdiction over her appeal. Id. The Initial Decision became the Final De cision of the Board when the Board denied Loucks’s petition for review. Final Decision at 1-2. Loucks then filed a timely petition for review by this c ourt. We have jurisdiction over Loucks’s petition pursuant to 28 U.S.C. § 1295(a)(9). We must affirm the Board’s decision unle ss it is “(1) arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance wit h law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence.” Hayes v. Dep’t of the Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). Whether the Board has jurisdiction ov er an appeal is a ques tion of law, which this Court reviews de novo. Pa rrott v. Merit Sys. Prot. Bd. , 519 F.3d 1328, 1334 (Fed. Cir. 2008). The appellant has the burden of establishing th e Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). On appeal, Loucks argues that the Board misapplied 5 C.F.R. § 315.802. She contends that she has already served the one-year probationary period, which she measures “from 10-01-2001 to 11-01-2002” and " until 04-14-2004 for [a] total of 2 years and 6 months.” Petr.’s Informal Br. ¶ 7. By citing these periods, Loucks apparently refers to her previous positions as a Re creational Assistant (O ctober 1, 2001 to November 1, 2002) and Sales Store Checker (November 4, 2002 to April 14, 2004).

2009-3236 32009-3236 4 But even if these positions could somehow be considered to involve “the same line of work” as her Health Technician position fo r purposes of the sec ond prong of 5 C.F.R. § 315.802(b), her previous positions would st ill not count towards the completion of her later probationary period because they ended more than 30 calendar days before she was hired for the Health Technician position. Because her previous employment fails to satisfy the third prong of 5 C.F.R. § 315.802(b), her probationary period remained uncompleted at the time of her termination, and the Board lacked jurisdiction over her appeal. For the foregoing reasons, the deci sion of the Board is affirmed

. COSTS No costs.