NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

LAVERNE F. BASS, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2012-3086 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CB7121110022-V-1. 

__________________________ 

Decided: September 10, 2012 

__________________________ 

LAVERNE F. BASS, Billings, Montana, pro se. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, Washington, 

DC, for respondent. With him on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 

Before DYK, CLEVENGER, and WALLACH, Circuit Judges. 
BASS v. MSPB 2

PER CURIAM.

Laverne F. Bass (“Bass”) petitions for review of a final 

decision of the Merit Systems Protection Board (“Board”) 

dismissing his appeal from an arbitration decision for lack 

of jurisdiction. Bass v. Dep’t of Labor, No. CB-7121-11-

0022-V-1 (M.S.P.B. Dec. 13, 2011). We affirm. 

BACKGROUND

Bass was appointed to the position of Program Analyst at the Occupational Safety and Health Administration (“OSHA”) beginning June 6, 2010. The appointment 

with OSHA was subject to the completion of a one-year 

probationary period. On August 13, 2010, OSHA notified 

Bass that his appointment would be terminated effective 

September 3, 2010, for reasons related to his performance. 

Pursuant to a collective bargaining agreement, Bass 

invoked arbitration to grieve his termination. Bass 

contended that he was an “employee” with appeal rights 

under title 5 because he had previously worked at the 

U.S. Department of the Interior (“DOI”) in a similar 

position from April 1980 through April 2000. He asserted 

that his prior federal service with DOI should be “tacked 

on” to his service with OSHA, thereby eliminating the 

need for him to complete a second probationary period. 

The arbitrator denied the grievance, concluding that Bass 

“was serving a ‘probationary period’ at the time of his 

discharge and, therefore was not an ‘employee’ with 

adverse action appeal rights.” U.S. Dep’t of Labor v. Am. 

Fed’n of Gov’t Emps., Local 12, No. L12-ARB-01060, slip 

op. at 11 (June 14, 2011) (Javits, Arb.). The arbitrator 

explained that his previous service could not be tacked on 

because it was not with the same federal agency and 

there was a break of more than 30 days between the two 

positions.
3 BASS v. MSPB

Bass sought Board review of the arbitrator’s decision 

under 5 U.S.C. § 7121(d). The Board dismissed Bass’s 

request for review for lack of jurisdiction because Bass did 

not allege discrimination in connection with the underlying action as required by section 7121(d). Bass timely 

appealed to this Court. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

Under 5 U.S.C. § 7703(c), we may only set aside 

agency actions, findings, or conclusions of law found to be 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” Whether the Board has jurisdiction to adjudicate 

an appeal is a question of law, which we review de novo. 

Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 

1995). 

Instead of seeking review of the arbitrator’s decision 

in this court pursuant to 5 U.S.C. § 7121(f), Bass sought 

to invoke the Board’s jurisdiction pursuant to section 

7121(d). Section 7121(d) provides that an aggrieved 

employee who contested the action through arbitration 

has an absolute right to request Board review of the 

arbitrator’s decision where the employee alleges that he 

was affected by a prohibited personnel practice as defined 

in 5 U.S.C. §§ 2302(b)(1) and 7702, i.e., discrimination on 

the basis of race, color, religion, sex, national origin, age, 

disability, marital status, or political affiliation. See

Jones v. Dep’t of the Navy, 898 F.2d 133, 134 (Fed. Cir. 

1990). But where, as here, the employee does not raise 

such allegations of discrimination before the arbitrator, 

the employee must seek review in this court. See 5 U.S.C. 

§ 7121. 
BASS v. MSPB 4

Bass did not raise allegations of discrimination before 

the arbitrator, before the Board, or even before us on 

appeal. The Board therefore did not have jurisdiction 

under section 7121(d) to review the arbitrator’s decision. 

See Rodriguez v. Merit Sys. Prot. Bd., 804 F.2d 673, 676 

(Fed. Cir. 1986). While Bass contends that the arbitrator 

improperly failed to consider his twenty years of prior 

federal service in determining whether he had appeal 

rights under title 5, that is irrelevant to the issue of 

appealability. 

COSTS

 No costs.