NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3159
MICHAEL J. TOLBERT,
Petitioner,
v.
SMALL BUSINESS ADMINISTRATION,
Respondent.
Michael J. Tolbert, of Marietta, Georgia, pro se.
Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3159
MICHAEL J. TOLBERT,
Petitioner,
v.
SMALL BUSINESS ADMINISTRATION,
Respondent.
__________________________
DECIDED: July 16, 2007
__________________________
Before LOURIE, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Michael J. Tolbert (Tolbert) appeals the decision of the Merit Systems Protection
Board (the Board) dismissing his appeal for lack of jurisdiction. Tolbert v. Small Bus.
Admin., AT315H060751-I-1 (M.S.P.B. Jan. 12, 2007) (Board Decision). We affirm.
BACKGROUND
Tolbert was hired on a career-conditional appointment to the position of Loan
Specialist with the Office of Disaster Assistance, Loan Processing Department, Atlanta,
Georgia (the agency), effective November 11, 2002. The appointment was subject to
completion of a one-year initial probationary period. On January 30, 2003, the agency
informed Tolbert that his appointment was being terminated. There is no dispute that
Tolbert, having been employed with the agency for approximately two months, was
terminated during his probationary period and that he had not completed one year of
continuous service. See 5 U.S.C. § 7511(a)(1).
On November 22, 2005, Tolbert appealed his removal. An Administrative Judge
(AJ) dismissed Tolbert’s appeal for lack of jurisdiction. Tolbert v. Small Bus. Admin.,
AT-315H-06-0751-I-1 (M.S.P.B. Mar. 23, 2006) (AJ’s Decision). The Board granted
Tolbert’s petition to review the AJ’s decision, finding that the AJ erred by failing to
address Tolbert’s allegations that the termination of his agency appointment was for
pre-appointment reasons and that the agency’s treatment of Tolbert amounted to a
prohibited personnel practice. Board Decision, at 2. Although, the Board determined
that Tolbert was entitled to a hearing on the jurisdictional issue, Tolbert declined a
hearing. Id. at 3. Based on the record, the Board found that Tolbert failed to satisfy his
burden of proof to establish the Board’s jurisdiction. Id. at 4-5. Thus, the Board
affirmed the AJ’s dismissal of the case. This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s decision must be sustained unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise unlawful; issued in violation of
applicable procedures; or unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). The Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction by statute
or regulation. See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327 (Fed. Cir.
2006). Tolbert, having been terminated during his probationary period and prior to
completing one year of continuous service, did not have a statutory right of appeal from
2007-3159 2
his termination. 5 U.S.C. § 7511. By regulation, the Board may review appeals of
terminated, probationary employees only if the appeal alleges: (1) discrimination based
on partisan political reasons or marital status or (2) failure to follow proper notification
procedures (as set forth in 5 C.F.R. § 315.805) for an employee terminated for pre-
appointment reasons. 5 C.F.R. § 315.806(a)-(c). Because Tolbert did not allege
discrimination based on partisan political reasons or marital status, the only issue is
whether the Board has jurisdiction to review the alleged failure by the agency to follow
the procedural requirements for terminating Tolbert “for reasons based in whole or in
part on conditions arising before his appointment.” 5 C.F.R. § 315.805.
The Board determined that Tolbert presented a nonfrivolous allegation that he
was terminated for pre-appointment reasons. Board Decision, at 3-4. However,
because Tolbert waived his right to a hearing on the jurisdictional issue, Tolbert bore the
burden of proving Board jurisdiction by a preponderance of the evidence based on the
submitted record. See 5 C.F.R. § 1201.56(a)(2)(i). The Board concluded that Tolbert
failed to meet this burden, particularly in light of the evidence that Tolbert was
terminated for performance problems rather than pre-appointment reasons. Board
Decision, at 4-5. The evidence shows that the agency informally counseled Tolbert
about his unacceptable performance on several occasions, and that his performance
alone was the agency’s reason for termination. Tolbert presented no evidence to
support his allegation that his termination was based in any part on pre-appointment
conditions. The Board’s conclusion is supported by substantial evidence, and we must
affirm. See 5 U.S.C. § 7703(c).
2007-3159 3
Tolbert failed to establish that any statute or regulation provides the Board with
jurisdiction to review his appeal, and the Board properly dismissed his appeal.
Moreover, Tolbert’s other allegations regarding prohibited personnel practices do not
provide an independent source of jurisdiction for the Board; rather, the personnel action
being challenged must be within the Board’s appellate jurisdiction under some law, rule
or regulation. See 5 U.S.C. § 2302; 5 U.S.C. § 7701. Here, that requirement is not met.
CONCLUSION
For the foregoing reasons, we affirm the Board’s dismissal of Tolbert’s appeal for
lack of jurisdiction.
COSTS
Each party shall bear its own costs.
2007-3159 4