Gowings v. Merit Systems Protection Board , 306 F. App'x 605 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3318
BRUCE A. GOWINGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Bruce A. Gowings, of Lewisburg, West Virginia, 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 B. Chad Bungard, General Counsel, and Joyce G. Friedman, Acting Associate
General Counsel for Litigation.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3318
BRUCE A. GOWINGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DC315H080213-I-1.
__________________________
DECIDED: January 12, 2009
__________________________
Before MICHEL, Chief Judge, SCHALL and PROST, Circuit Judges.
PER CURIAM.
Bruce A. Gowings petitions for review of an initial decision of the Merit Systems
Protection Board (“Board”) dismissing Mr. Gowings’s appeal for lack of jurisdiction,
Gowings v. Dep’t of Def., No. DC315H080213-I-1 (M.S.P.B. Apr. 1, 2008) (“Board
Decision”), which became final after the full board denied his petition for review.
Because we agree that Mr. Gowings has not established jurisdiction, we affirm.
BACKGROUND
On September 19, 2007, Mr. Gowings was appointed to a position in the
Department of Defense (“Agency”), subject to completion of a one-year probationary
period. Before expiration of that year, the Agency terminated Mr. Gowings, effective
December 1, 2007, for “undependability as evidenced by [his] pattern of using
unscheduled leave.” Mr. Gowings appealed his termination to the Board where he: (1)
challenged the basis of his termination, asserting that his unscheduled leave was
excused by medical certificates; and (2) alleged that, despite the Agency’s asserted
grounds, his termination was actually based upon a his failure to satisfy a pre-
appointment condition.
During the proceedings, the administrative judge explained to Mr. Gowings that,
because he was terminated during a probationary period, the Board’s jurisdiction only
permitted him to appeal on limited grounds, as provided by 5 C.F.R. § 315.806. After
giving Mr. Gowings an opportunity to establish the Board’s jurisdiction, the
administrative judge found that the Board lacked jurisdiction and dismissed Mr.
Gowings’s appeal. Board Decision at 6. After the full Board denied Mr. Gowings’s
petition for review, he sought review by this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s jurisdiction is limited to those matters prescribed by the applicable
laws, rules, and regulations. Torain v. U.S. Postal Serv., 83 F.3d 1420, 1422 (Fed. Cir.
1996) (citing 5 U.S.C. § 7701(a)). Whether the Board has jurisdiction is a question of
law that we review without deference, but we are bound by the Board’s underlying
factual findings “unless those findings are not supported by substantial evidence.”
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998); see 5 U.S.C.
§ 7703(c). Mr. Gowings has the burden of establishing the Board’s jurisdiction. See 5
C.F.R. § 1201.56(a)(2)(i).
2008-3318 2
An employee terminated during a probationary period has a limited right of
appeal to the Board. 5 C.F.R. § 315.806(a); Pervez v. Dep’t of the Navy, 193 F.3d
1371, 1375 (Fed. Cir. 1999). First, the Board has jurisdiction over an allegation that the
termination was based on partisan political reasons or marital status. 5 C.F.R.
§ 315.806(b). Mr. Gowings does not allege that his termination was based on either of
these factors. Second, the Board has jurisdiction over an allegation that the termination
was based on pre-appointment reasons, but was not effected in accordance with the
procedural requirements of § 315.805. Id. at § 315.806(c).
In an attempt to establish jurisdiction under the latter provision, Mr. Gowings
argues that his termination was based on a pre-appointment reason, despite the
explanation in the termination letter that he was terminated because of post-
appointment conduct. In rejecting this contention, the Board found that Mr. Gowings
“proffered no facts to show that his termination was based on circumstances other than
those cited in the agency’s termination letter.” Board Decision at 4. On appeal, Mr.
Gowings does not point to any evidence to the contrary. Rather, Mr. Gowings appears
to contend that his failure to satisfy a condition of appointment (specifically, a residency
requirement) rendered his appointment erroneous and unlawful and, thus, this pre-
appointment reason must be considered because it occurred prior to his post-
appointment conduct.
There is sufficient evidence to support the Board’s factual finding that Mr.
Gowings failed to show that his termination was based on a pre-appointment reason.
Moreover, the Board correctly determined that it lacked authority, without more, to
review the validity of Mr. Gowings’s original appointment. Board Decision at 4-5.
2008-3318 3
Accordingly, we perceive no error in the Board’s conclusion that Mr. Gowings did not
establish that the Board had jurisdiction. Finally, having concluded that the Board lacks
jurisdiction, we do not reach Mr. Gowings’s arguments regarding the merits of his
appeal (e.g., whether the agency improperly disregarded medical certificates when it
decided to terminate Mr. Gowings and whether he deserves compensation for expenses
incurred when starting an allegedly erroneous appointment).
For the foregoing reasons, we affirm the Board’s decision to dismiss for lack of
jurisdiction.
COSTS
Each party shall bear its own costs.
2008-3318 4