Haynes v. MSPB , 639 F. App'x 641 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
QUINCY R. HAYNES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1312
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-15-0871-I-1.
______________________
Decided: May 4, 2016
______________________
QUINCY R. HAYNES, Virginia Beach, VA, pro se.
STEPHEN FUNG, Office of General Counsel, Merit Sys-
tems Protection Board, Washington, DC, for respondent.
Also represented by BRYAN G. POLISUK.
______________________
Before PROST, Chief Judge, DYK, and REYNA, Circuit
Judges.
2 HAYNES v. MSPB
PER CURIAM.
Quincy Ray Haynes petitions for review of a decision
of the Merit Systems Protection Board (“MSPB” or
“Board”) dismissing his appeal for lack of jurisdiction. We
affirm.
BACKGROUND
On March 9, 2015, Mr. Haynes began employment as
a Distribution Process Worker for the Department of
Defense. Mr. Haynes’ position was a competitive service
position and was subject to a one-year probationary
period. On May 20, 2015, the Department of Defense
terminated Mr. Haynes for alleged poor performance. On
June 16, 2015, Mr. Haynes appealed his termination to
the MSPB, alleging that the reasons given by the De-
partment of Defense for his termination were false and
that he was improperly terminated because of his race.
On June 26, 2015, the administrative judge issued an
order requiring Mr. Haynes to file evidence and argument
establishing that his appeal was within the MSPB’s
jurisdiction. Mr. Haynes did not respond. On July 15,
2015, the administrative judge issued a second order,
again requiring Mr. Haynes to file evidence and argument
establishing that his appeal was within the MSPB’s
jurisdiction and warning that failure to comply would
result in dismissal. Again, Mr. Haynes did not respond.
On July 28, 2015, the administrative judge issued an
initial decision dismissing Mr. Haynes’ appeal for lack of
jurisdiction.
Mr. Haynes petitioned for review of the initial deci-
sion with the Board on July 28, 2015. Mr. Haynes con-
tinued to allege that the reasons given for his termination
were false and that he was terminated because of his
race. On November 23, 2015, the Board issued a final
decision affirming the dismissal of Mr. Haynes’ appeal
and modifying the initial decision to further explain why
HAYNES v. MSPB 3
Mr. Haynes had not established a nonfrivolous allegation
of MSPB jurisdiction. Haynes v. Dep’t of Defense, DC-
315H-15-0871-I-1 (M.S.P.B. Final Order, Nov. 23, 2015).
Mr. Haynes petitions for review by our court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Subject matter jurisdiction of the MSPB is a question
of law, which we review de novo. Vesser v. Office of Pers.
Mgmt., 29 F.3d 600, 603 (Fed. Cir. 1994). The subject
matter jurisdiction of the MSPB is “limited to actions
designated as appealable to the Board ‘under any law,
rule, or regulation.’” Prewitt v. Merit Sys. Prot. Bd., 133
F.3d 885, 886 (Fed. Cir. 1998) (quoting 5 U.S.C.
§ 7701(a)).
The petitioner bears the burden of establishing the
MSPB’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i); Fields v.
Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006). If
an employee makes a nonfrivolous allegation of MSPB
jurisdiction, he is entitled to a hearing at which he must
prove jurisdiction by preponderant evidence. Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1325, 1330 (Fed. Cir.
2006) (en banc). Nonfrivolous allegations require allega-
tions of fact that, if proven, would establish the MSPB’s
jurisdiction. See id.In general, Mr. Haynes must satisfy the definition of
“employee” under 5 U.S.C. § 7511(a)(1) to have a statutory
right to appeal his termination to the MSPB. McCormick
v. Dep’t of Air Force, 307 F.3d 1339, 1341 (Fed. Cir. 2002).
To qualify as an “employee,” Mr. Haynes was required to
show that he was “not serving a probationary or trial”
period or had completed at least one year of “current
continuous service under other than a temporary ap-
pointment limited to 1 year or less.” 5 U.S.C.
§ 7511(a)(1)(A); see also McCormick, 307 F.3d at 1341.
The record here reflects that Mr. Haynes served only two
4 HAYNES v. MSPB
months of his one-year probationary period and has, at
most, nine months of total federal service. Mr. Haynes
does not dispute these facts. Accordingly, Mr. Haynes
does not satisfy the definition of “employee” under 5
U.S.C. § 7511(a)(1). A probationary employee in the
competitive service who does not meet the above statutory
definition of “employee” may still appeal termination
decisions to the MSPB, but only if the employee alleges
discrimination because of his marital status or partisan
political affiliation or alleges that the requisite termina-
tion procedures were not followed. 5 C.F.R. §§
315.805, 315.806; see also Blount v. Dep’t of the Treasury,
109 M.S.P.R. 174, 177 (2008). Although Mr. Haynes
alleges that he was discriminated against because of his
race, he does not allege that he was discriminated against
because of his marital status or political affiliation, nor
does he allege that any termination procedures were
violated. Accordingly, Mr. Haynes has not shown that he
has any right to appeal his termination to the MSPB.
As the Board properly explained, Mr. Haynes’ argu-
ments regarding the merits of his termination and his
allegation of race discrimination do not satisfy the juris-
diction requirement. Nor is Mr. Haynes’ prior employ-
ment, college education, or veteran status relevant to
establishing jurisdiction. Because Mr. Haynes failed to
make a nonfrivolous allegation of MSPB jurisdiction, the
Board did not err in dismissing his appeal.
AFFIRMED
COSTS
No costs.