NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

STEVEN TOD BASEDEN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent 

DEPARTMENT OF THE NAVY,

Intervenor

______________________ 

2015-3069

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-3443-14-0468-I-1.

______________________ 

Decided: October 14, 2015

______________________ 

STEVEN TOD BASEDEN, FPO, AE, pro se. 

CALVIN M. MORROW, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK.

DANIEL KENNETH GREENE, Commercial Litigation 

Branch, Civil Division, United States Department of 
2 BASEDEN v. MSPB

Justice, Washington, DC, for intervenor. Also represented 

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

REGINALD T. BLADES, JR. 

______________________ 

Before O’MALLEY, REYNA, and CHEN, Circuit Judges.

PER CURIAM. 

Appellant Steven Tod Baseden (“Mr. Baseden”) appeals the December 4, 2014 decision of the Merit Systems 

Protection Board (“MSPB” or “the Board”) dismissing Mr. 

Baseden’s appeal for lack of jurisdiction. Baseden v. Dep’t 

of Navy, No. DC-3443-14-0468-I-1, 2014 WL 6879130 

(M.S.P.B. Dec. 4, 2014) (“Final Decision”). For the below 

reasons, we affirm.

BACKGROUND

On October 18, 2013, the Navy issued a job announcement in order to recruit a GS (General Schedule)-

12 civil engineer to be stationed at Naval Station Guantanamo Bay, Cuba. On November 25, 2013, after considering a list of eligible candidates, Mr. Baseden received an 

email from Navy personnel tentatively offering him the 

position. Mr. Baseden was previously employed by the 

Department of Indian Affairs (DIA) until he resigned in 

2004. At the time of his resignation, he was compensated 

at the GS-12, Step 5 level.

The position the Navy tentatively offered Mr. Baseden, however, was for an appointment at GS-12, Step 1. 

Mr. Baseden accepted the offer, but requested he be 

reinstated at his previous paygrade, GS-12, Step 5. He 

did not make his acceptance conditional on this request, 

however. On January 22, 2014, the agency sent Mr. 

Baseden an SF (Standard Form)-50, indicating that it had 

appointed him to the position of Civil Engineer at the GS12, Step 1 level.
BASEDEN v. MSPB 3

Mr. Baseden filed an appeal with the MSPB on February 21, 2014, alleging that the agency demoted him 

from a GS-12, Step 5 position to a GS-12, Step 1 position 

in February 2014. Baseden v. Navy, No. DC-3443-14-

0468-I-1, 2014 WL 1516346 (Apr. 17, 2014). Because the 

Board believed it lacked jurisdiction, it issued a show 

cause order on February 27, 2014. Mr. Baseden responded that same day, alleging that he was “classified as a GS0810-12-5 employee in Dec 2013, went on the payroll in 

Jan 2014 at the agreed to GS-0810-12-5 and then was 

notified in February 2014 that he was being demoted from 

step 5 to step 1.” Id. In support of his claim, Mr. Baseden 

submitted a rotation agreement, with his signature, dated 

December 11, 2013, classifying Mr. Baseden as an “employee” and selecting him for a GS-12, Step 5 Civil Engineer position. Final Decision, 2014 WL 6879130 at ¶ 3. 

For its part, the agency responded to the show cause 

order by alleging the Board lacked jurisdiction over the 

appeal because Mr. Baseden did not meet the definition of 

an “employee” under 5 U.S.C. § 7511(a), and because 

there was no appealable action as Mr. Baseden never 

suffered a reduction in pay. The agency adduced evidence, in the form of an SF-50, that it had appointed him 

to the position of Civil Engineer at the GS-12, Step 1 level 

effective January 22, 2014, contradicting Mr. Baseden’s 

allegation that he had been appointed at the GS-12, Step 

5 level.

The Administrative Judge (“AJ”) issued an initial decision dismissing the appeal for lack of jurisdiction. The 

AJ found that Mr. Baseden could not establish that he 

was an employee within the meaning of 5 U.S.C. 

§ 7511(a). The AJ further found that, even if Mr. Baseden 

could qualify as an employee, he failed to make a nonfrivolous allegation that he suffered a reduction in pay.

Mr. Baseden filed a petition for review of the initial 

decision. The Board denied that petition and affirmed its 
4 BASEDEN v. MSPB

initial decision that it lacked jurisdiction over Mr. Baseden’s reduction in pay claim because Mr. Baseden was not 

an employee within the meaning of 5 U.S.C. § 7511. The 

Board went on to note, however, that, had Mr. Baseden 

established jurisdiction, his reliance on the rotation 

agreement would constitute a nonfrivolous allegation that 

he suffered a loss in pay.

DISCUSSION

A. Standard of Review

Whether the Board has jurisdiction to hear an appeal 

is a question of law reviewed de novo. Diefenderfer v. 

Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. Cir. 1999). 

The Board’s jurisdiction is limited to those actions specifically granted by law, rule, or regulation. 5 U.S.C. 

§ 7701(a) (2000); Meeker v. Merit Sys. Prot. Bd., 319 F.3d 

1368, 1374 (Fed. Cir. 2003). The petitioner bears the 

burden to establish jurisdiction. See, e.g., McCormick v. 

Dep’t of the Air Force, 307 F.3d 1339, 1340 (Fed. Cir. 

2002). To satisfy this burden, a petition must put forward 

a nonfrivolous allegation of Board jurisdiction. Nonfrivolous allegations are allegations of fact that, if proven, 

could demonstrate the Board’s jurisdiction over the matter at hand. Walker v. Department of the Army, 119 

M.S.P.R. 391, ¶ 6 n.2 (2013). 

We review MSPB decisions under the standards established by 5 U.S.C. § 7703. U.S. Postal Serv. v. Gregory, 

534 U.S. 1, 6–7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001). 

We set aside MSPB’s actions, findings, or conclusions if 

they are:

(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 . . . . 
BASEDEN v. MSPB 5

5 U.S.C. § 7703(c). Arbitrary and capricious review is 

“extremely narrow.” Gregory, 534 U.S. at 6–7. Under this 

standard, the MSPB receives “wide latitude” and “[i]t is 

not for the Federal Circuit to substitute its own judgment 

for that of the Board.” Id. at 7. 

B. Analysis

“The jurisdiction of the MSPB is not plenary but is 

limited to those actions which are made appealable to it 

by law, rule, or regulation.” Maddox v. Merit Sys. Prot. 

Bd., 759 F.2d 9, 10 (Fed. Cir. 1985); see also Goines v. 

Merit Sys. Prot. Bd., 258 F.3d 1289, 1294 (Fed. Cir. 2001); 

Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1374 (Fed. 

Cir. 2003). 

5 U.S.C. § 7513 states that “[a]n employee against

whom an action is taken under this section is entitled to 

appeal to the Merit Systems Protection Board . . . .” Mr. 

Baseden argues that the Board has jurisdiction over his 

alleged reduction in pay. Mr. Baseden does not, however 

qualify as an employee under the statutory guideline.

In the competitive service, an employee is an individual either: (1) who is not serving a probationary or trial 

period under an initial appointment, or (2) who has 

completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or 

less. 5 U.S.C. § 7511(a)(1)(A).

If an individual has not served a full year under his 

appointment—which Mr. Baseden had not as of the time 

his appeal was dismissed—he can nevertheless demonstrate that he is no longer a probationer by tacking on 

prior service if: (1) the prior service was rendered immediately preceding the probationary appointment; (2) it 

was performed in the same agency; (3) it was performed 

in the same line of work; and (4) it was completed with no 

more than one break in service of less than 30 days. 
6 BASEDEN v. MSPB

Henderson v. Dep’t of Treasury, 114 M.S.P.R. 149, ¶ 10 

(2010).

The Board found that on the date of the alleged reduction in pay—February 3, 2014—Mr. Baseden was a probationary employee in the competitive service. “[T]he 

appellant was appointed to a career conditional position 

in the competitive service, effective January 22, 2014, 

that was subject to the completion of a 1-year probationary period, which commenced that day.” Final Decision, 

2014 WL 6879130 at ¶ 7. Before being appointed, there 

was a 10-year break in Mr. Baseden’s service between 

2004 and 2014. Mr. Baseden is, therefore, a probationer 

and not an employee.

In response, Mr. Baseden argues that his appointment was unlawful. Because he was never properly 

appointed, he remains an applicant and not an employee. 

Applicants, however, are not entitled to appeal reduction 

in pay claims to the Board. 5 U.S.C. § 7513 states that 

“[a]n employee against whom an action is taken under this 

section is entitled to appeal to the Merit Systems Protection Board . . . .” (emphasis added). 

In a final effort to establish jurisdiction, Mr. Baseden 

argues that he was reinstated rather than appointed. See

5 U.S.C. § 7511(a)(1)(A)(i) (an employee is one who “is not 

serving a probationary or trial period under an initial 

appointment”). In support of this, Mr. Baseden points to 

the rotation agreement, which notes in handwriting at the 

bottom: “N/A — Reinstatement to Fed govt.” Interpreting this in the light most favorable to the petitioner, 

however, Mr. Baseden still fails to establish jurisdiction. 

A conclusory statement from petitioner that a handwritten statement on a rotation agreement is sufficient to 

affect reinstatement is insufficient. A rotation agreement

provides a Department of Defense (DOD) employee who is 

rotating to a foreign duty station with notice of his or her 

return rights to the position that the employee held just 
BASEDEN v. MSPB 7

prior to rotating as well as notice of any restrictions on his 

or her overseas employment. 10 U.S.C. § 1586. Mr. 

Baseden’s rotation agreement was issued to indicate that 

he did not have return rights. The Board found no basis 

to conclude that, because reinstatement was mentioned in 

the rotation agreement, Mr. Baseden was reinstated 

rather than appointed. Final Decision, 2014 WL 6879130 

at ¶ 9. Rather, the Board concluded that the evidence 

showed that Mr. Baseden “was appointed from a list of 

eligible and not reinstated.” Id. Such a decision was 

within the agency’s discretion in determining how to fill 

vacancies in the competitive service.

“An agency may fill a vacancy in the competitive service by any method authorized in this chapter, including 

competitive appointment from a list of eligibles, noncompetitive appointment under special authority, reinstatement, transfer, reassignment, change to lower grade, or 

promotion.” 5 C.F.R. § 330.102 (emphasis added). In this 

case, the agency produced documentary evidence that Mr. 

Baseden was selected from a list of eligibles, including the 

SF-50 from January 22, 2014. Mr. Baseden incorrectly 

contends that an ambiguous, handwritten notation on a 

rotation agreement constitutes sufficient evidence to 

create a prima facie case of jurisdiction. We disagree.

On this record, because Mr. Baseden did not put forward a nonfrivolous allegation of Board jurisdiction, the 

Board’s decision dismissing his case for lack of jurisdiction 

is correct. We agree with the Board that Mr. Baseden is 

not an employee within the meaning of 5 U.S.C. § 7511 

and affirm its final decision dismissing the matter.1

1 The Department of the Navy, as intervenor, asks 

us to correct an alleged error committed by the Board. 

Namely, the Board’s conclusion that, if Mr. Baseden was 

found to be an employee in the relevant sense, the Board 

 
8 BASEDEN v. MSPB

CONCLUSION

For the foregoing reasons, and because we find Mr. 

Baseden’s remaining arguments are without merit, we 

affirm the judgment of the Merit Systems Protection 

Board. 

AFFIRMED

would have jurisdiction because the rotation agreement 

could form the basis of a nonfrivolous allegation that Mr. 

Baseden has “suffered a demonstrable loss in pay.” We 

decline to do so in light of our determination that the 

Board lacks jurisdiction over Mr. Baseden’s claims.