NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3232
STEVEN J. MOWERY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Steven J. Mowery, of Reynoldsburg, Ohio, pro se.
Calvin M. Morrow, 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 Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3232
STEVEN J. MOWERY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in CH0752090184-I-1.
___________________________
DECIDED: December 9, 2009
___________________________
Before LOURIE and DYK, Circuit Judges, and KENDALL, District Judge. ∗
PER CURIAM.
Steven J. Mowery (“Mowery”) appeals the final order of the Merit Systems
Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. See Mowery v.
Dep’t of Def., No. CH-0752-09-0184-I-1 (M.S.P.B. May 26, 2009). We affirm.
BACKGROUND
Mowery was appointed by the Department of Defense Logistics Agency (“the
agency”) to the position of Police Officer, GS-05, effective March 31, 2008. The
appointment was subject to the completion of a one-year probationary period. On
October 27, 2008, the agency proposed to terminate Mowery’s employment for
∗
Honorable Virginia M. Kendall, District Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
providing false information in response to inquiries on official questionnaires (relating to
security clearance) concerning the circumstances under which he left his previous
employment. On November 10, 2008, Mowery resigned or was terminated from his
employment.
On December 8, 2008, Mowery filed an appeal with the Board alleging that the
agency wrongfully terminated him from his employment. He alleged that he had initially
answered the questions truthfully but that someone at the agency had told him to
change his answers, and that he had done so. On December 12, 2008, the
administrative judge (“AJ”) issued a jurisdictional order informing Mowery that the Board
might not have jurisdiction over his appeal due to the fact that probationary employees,
such as Mowery, lack a right to appeal, unless the termination is based on partisan
political considerations or marital status. The AJ ordered Mowery to provide evidence
and argument showing that the Board had jurisdiction over his appeal. In response
Mowery stated that “in the middle of this political mess with the Defense Supply Center
(DLA Police), I re-enlisted,” Resp’t’s App. 3; that “I believe there was other political
influence involved in my termination of employment,” id. at 30; and his general assertion
that “there is a political influence on this case,” id. at 36.
In a decision dated February 5, 2009, the AJ found that the agency terminated
Mowery for post-employment reasons on November 10, 2008. Mowery v. Dep’t. of Def.,
No. CH-0752-09-0184-I-1 (M.S.P.B. Feb. 5, 2009). She determined that Mowery lacked
a statutory right to appeal to the Board because he was a probationary employee at the
time of termination and that his reference to political influence on his termination did not
2009-3232 2
constitute a sufficient non-frivolous allegation that he had been terminated for partisan
political reasons. She therefore dismissed his appeal for lack of jurisdiction.
On May 26, 2009, the full Board denied Mowery’s petition for review, and the
AJ’s decision became the final decision of the Board. Mowery petitioned for review in
this court and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. However,
whether the Board has jurisdiction over an appeal is a question of law, which we review
de novo. Delalat v. Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed. Cir. 2009). The
burden of showing jurisdiction is on the petitioner. See 5 C.F.R. § 1201.56(a)(2)(i).
Preference-eligible employees must have one year of current continuous service in the
same or similar position in an Executive Agency to be an “employee” with Board appeal
rights. See 5 U.S.C. § 7511(a)(1)(B). Mowery acknowledges that he worked in his
position for eight months and was therefore a probationary employee. See Resp’t’s
App. 37. The Board correctly observed that Mowery was terminated for post-
employment reasons, because the termination related to forms filled out after he began
his period of employment. See id. at 23. Therefore, the Board was correct in
concluding that Mowery could only appeal to the Board if he alleged non-frivolous facts
that his termination was based on partisan political reasons or marital status
discrimination. See 5 U.S.C. § 7511(a)(1)(B); 5 C.F.R. § 315.806(b).
Here, Mowery’s only assertions relevant to jurisdiction were his statements that
“in the middle of this political mess with the Defense Supply Center (DLA Police), I re-
2009-3232 3
enlisted,” Resp’t’s App. 3; that “I believe there was other political influence involved in
my termination of employment,” id. at 30; and his general assertion that “there is a
political influence on this case,” id. at 36. We agree with the Board that these
conclusory statements do not constitute non-frivolous allegations of partisan political
discrimination. Therefore, the Board properly declined to exercise jurisdiction.
COSTS
No costs.
2009-3232 4