NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TINA M. KELLEY (NOW KNOWN AS TINA M. 

DEQUIN), 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2009-3250 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in CH0752090405-I-1. 

___________________________ 

Decided: June 10, 2010 

___________________________ 

TINA M. DEQUIN, of Plymouth, Michigan, pro se. 

MICHAEL A. CARNEY, General Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC, for respondent. With him on the brief 

were JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 

__________________________ 
KELLEY v. MSPB 2

Before BRYSON, SCHALL, and GAJARSA, Circuit Judges. 

PER CURIAM. 

DECISION

The appellant, Tina M. Dequin (formerly known as 

Tina M. Kelley), challenges the final decision of the Merit 

Systems Protection Board dismissing her appeal for lack 

of jurisdiction. We affirm. 

BACKGROUND

On March 18, 2007, Ms. Dequin received a temporary 

appointment, not to exceed April 17, 2008, to an excepted 

service position as Social Worker with the Department of 

Veterans Affairs. The Standard Form 50 (SF-50) documenting her appointment stated that the appointment 

was “subject to completion of [a] one-year initial probationary/trial/ period” beginning March 18, 2007. It further stated that she had no creditable military service 

and was not eligible for veterans’ preference status. 

On April 18, 2008, Ms. Dequin’s temporary appointment was converted to a permanent excepted service 

appointment. The SF-50 that documented that conversion stated that the appointment was “subject to completion of [a] one-year initial probationary/trial/ period” 

beginning April 18, 2008. Like the earlier SF-50, it also 

indicated no military service or eligibility for veterans’ 

preference status. 

On February 4, 2009, the agency issued Ms. Dequin a 

notice of Termination During Probationary Period, effective March 4, 2009, for failure to function as an independent provider. Six days later, the agency issued a second 

termination notice, which rescinded the original notice 
3 KELLEY v. MSPB

and amended the effective date to February 10, 2009. Ms. 

Dequin was terminated on that date. 

Ms. Dequin appealed her termination to the Board. 

In her appeal, she alleged that her termination was 

improper because she had already successfully completed 

the one-year probationary period required for her initial 

appointment. The administrative judge who was assigned to the appeal issued an order advising Ms. Dequin 

of the Board’s limited jurisdiction to hear appeals from 

employees in the excepted service and ordering her to 

demonstrate that the Board had jurisdiction over her 

appeal. In response, Ms. Dequin argued that she was “not 

serving a trial period on an initial appointment” and that 

she therefore qualified as an employee under 5 U.S.C. 

§ 7511(a)(1)(C)(i), with the attendant right to appeal from 

an adverse action to the Board. 

The administrative judge dismissed Ms. Dequin’s appeal, holding that the Board lacked jurisdiction over the 

matter because Ms. Dequin did not show that she qualified as an “employee” under 5 U.S.C. § 7511. After the 

full Board denied Ms. Dequin’s petition for review, Ms. 

Dequin petitioned for review by this court. 

DISCUSSION

The Board’s jurisdiction over appeals from adverse 

agency actions is limited to matters for which a right to 

appeal is granted by law, rule, or regulation. See 5 U.S.C. 

§ 7701(a); Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1576 

(Fed. Cir. 1995). The appellant in an adverse action 

appeal bears the burden of establishing jurisdiction. See

5 C.F.R. § 1201.56(a)(2)(i); Maddox v. Merit Sys. Prot. Bd., 

759 F.2d 9, 10 (Fed. Cir. 1985). 
KELLEY v. MSPB 4

Because Ms. Dequin’s appointment as a Social Worker 

is covered by 38 U.S.C. § 7401(3), her appeal rights are 

governed by title 5 of the United States Code. See 38 

U.S.C. § 7403(f)(3). The Board therefore has jurisdiction 

over this appeal only if Ms. Dequin qualifies as an “employee” under 5 U.S.C. § 7511(a)(1). For individuals 

serving in the excepted service, 5 U.S.C. § 7511(a)(1) 

defines “employee” in two ways: 

(B) a preference eligible in the excepted service 

who has completed 1 year of current continuous 

service in the same or similar positions-- 

(i) in an Executive agency; or 

(ii) in the United States Postal Service or 

Postal Regulatory 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; 

Ms. Dequin does not argue that she is a preference 

eligible employee, as she has no creditable military experience or veterans’ preference status. Therefore, 5 

U.S.C. § 7511(a)(1)(B) is inapplicable to her. With respect 

to 5 U.S.C. § 7511(a)(1)(C), an individual qualifies as an 

“employee” by satisfying the requirements of either clause 

(1)(C)(i) or clause (1)(C)(ii) of subsection 7511(a). See Van 

Wersch v. Department of Health & Human Services, 197 

F.3d 1144, 1151 (Fed. Cir. 1999). Thus, Ms. Dequin must 
5 KELLEY v. MSPB

demonstrate that at the time of her termination she was 

either “not serving a probationary or trial period under an 

initial appointment pending conversion to the competitive 

service” or had “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.” Id.; 5 U.S.C. § 7511(a)(1)(C). 

Ms. Dequin does not contend that she meets the requirements of clause (1)(C)(ii) of subsection 7511(a). As 

the administrative judge noted, Ms. Dequin submitted no 

evidence of prior federal service other than her 23 months 

with the Department of Veterans Affairs, of which more 

than half was served pursuant to a temporary one-year 

appointment. Because Ms. Dequin did not complete two 

years of continuous service under a permanent appointment, she lacks appeal rights to the Board under 5 U.S.C. 

§ 7511(a)(1)(C)(ii). See Forest v. Merit Sys. Prot. Bd., 47 

F.3d 409, 411 (Fed. Cir. 1995). 

Ms. Dequin argues that she qualifies as an “employee” 

under 5 U.S.C. § 7511(a)(1)(C)(i) because she was not 

serving an “initial” appointment at the time of her termination. She interprets that statute as granting appeal 

rights to any excepted service employee who is not among 

those “serving a probationary or trial period under an 

initial appointment pending conversion to the competitive 

service.” This court, however, has interpreted 5 U.S.C. § 

7511(a)(1)(C)(i) as granting appeal rights to excepted 

service employees who are “serving under an initial 

appointment pending conversion to the competitive service, provided they are not serving a probationary or trial 

period under such an appointment.” Barrett v. Soc. Sec. 

Admin., 309 F.3d 781, 788 (Fed. Cir. 2002), quoting 

Forest, 47 F.3d at 412. That is, in order to qualify as an 

employee under 5 U.S.C. § 7511(a)(1)(C)(i), an individual 
KELLEY v. MSPB 6

must be serving under an initial appointment pending 

conversion to the competitive service and must not be 

serving a probationary or trial period. 

Under that interpretation of the statute, Ms. Dequin 

fails to qualify as an “employee” with Board appeal rights. 

Ms. Dequin was not serving an “initial” appointment to 

the excepted service, and there is no evidence that her 

appointment was “pending conversion to the competitive 

service.” Moreover, it is undisputed that Ms. Dequin’s 

second appointment was subject to her completion of a 

one-year probationary period. As a result, we conclude 

that the Board lacked jurisdiction to hear Ms. Dequin’s 

appeal under 5 U.S.C. § 7511(a)(1)(C)(i) as that statute 

has been interpreted by this court. 

Ms. Dequin attempts to characterize her second appointment as a reinstatement within the meaning of 38 

U.S.C. § 7403(d), but that argument is unavailing. First, 

there is no evidence to support her apparent assertion 

that her later position was a reinstatement to an original, 

initial appointment. Moreover, Ms. Dequin has failed to 

show either that her appointment is “pending conversion 

to the competitive service” within the meaning of 5 U.S.C. 

§ 7511(a)(1)(C)(i), or that she has at least two years of 

continuous, permanent service within the meaning of 5 

U.S.C. § 7511(a)(1)(C)(ii). The Board therefore lacks 

jurisdiction over her appeal without regard to whether 

her second appointment could be characterized as a 

reinstatement. 

Ms. Dequin’s assertions that she received good performance evaluations and was unaware of any perceived 

problems with her performance are likewise unavailing. 

Those considerations go to the merits of Ms. Dequin’s 

appeal, which neither the Board nor this court may 
7 KELLEY v. MSPB

address because Congress has not given the Board jurisdiction to review agency actions against persons who do 

not satisfy the statutory definition of “employee.” 

AFFIRMED