NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROSEMARY A. DAVIS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-1331

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-3443-15-0969-I-1.

______________________ 

Decided: May 6, 2016

______________________ 

 ROSEMARY A. DAVIS, Alexandria, VA, pro se.

 SARA B. REARDEN, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before MOORE, O’MALLEY, and HUGHES, Circuit Judges.

PER CURIAM. 
2 DAVIS v. MSPB

Rosemary Davis appeals from a decision of the Merit 

Systems Protection Board dismissing her appeal for lack 

of jurisdiction. Because Ms. Davis was not an “employee” 

for whom the Board has jurisdiction to hear an appeal, we 

affirm the Board’s dismissal.

I 

Ms. Davis worked for the United States Bankruptcy 

Court for the District of Maryland as a Case Administrator II from August 2011 to October 2012, when her employment was terminated. In July 2015, Ms. Davis filed 

an appeal with the Board, alleging that the Bankruptcy 

Court had not taken the necessary actions to allow her to 

extend her health coverage after termination of her 

employment. The Board dismissed Ms. Davis’s appeal for 

lack of jurisdiction after finding that she failed to prove 

that the Board had jurisdiction over her case.

Ms. Davis appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).

II 

We will set aside any decision of the Board that is “(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.” 

5 U.S.C. § 7703(c) (2012). “Whether the [B]oard has 

jurisdiction over an appeal is a question of law that this 

court reviews de novo.” Johnston v. Merit Sys. Prot. Bd., 

518 F.3d 905, 909 (Fed. Cir. 2008). “Petitioner bears the 

burden of establishing by a preponderance of the evidence 

that the Board has jurisdiction over her appeal.” Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378, 1380 (Fed. Cir. 

1996).

The Board only has jurisdiction to review personnel 

actions as provided by statute. See Collaso v. Merit Sys. 

Prot. Bd., 775 F.2d 296, 297 (Fed. Cir. 1985); see also 5 
DAVIS v. MSPB 3

U.S.C. § 7701(a) (2012). Ms. Davis alleges that the Board 

has jurisdiction over her appeal under 5 U.S.C. § 7513(d)

(2012). Section 7513(d) provides that “[a]n employee 

against whom an [adverse] action is taken” may appeal to 

the Board. For the purpose of § 7513, an employee is any 

one of (A) “an individual in the competitive service,” (B) 

an individual in the excepted service employed for at least 

one year in an executive agency, the U.S. Postal Service, 

or the Postal Regulatory Commission, and (C) an individual in the excepted service pending conversion to the 

competitive service or having served two years in an 

executive agency under a non-temporary appointment. 5 

U.S.C. § 7511(a)(1) (2012). 

But Ms. Davis was not an “employee” under any of the 

provisions of § 7511(a)(1). Ms. Davis was in the excepted 

service, so she does not qualify under subsection (A). 

Ms. Davis was an employee of the judicial branch, so she 

does not qualify under subsection (B). And, Ms. Davis 

was not pending conversion to the competitive service and 

had not served two years in an executive agency, so she 

does not qualify under subsection (C).

Therefore, Ms. Davis was not an “employee” for whom

the Board has jurisdiction to hear an appeal from an 

adverse personnel action. Accordingly, we affirm the 

Board’s dismissal of Ms. Davis’s appeal.

AFFIRMED

No costs.