NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3270
DENNIS R. MARTIN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Dennis R. Martin, of Aspers, Pennsylvania, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Joyce G. Friedman, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3270
DENNIS R. MARTIN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: January 16, 2007
___________________________
Before BRYSON, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Dennis R. Martin appeals from a final decision of the Merit Systems Protection
Board, No. PH-0752-06-0127-I-1, dismissing his appeal for lack of jurisdiction. We
affirm.
BACKGROUND
Mr. Martin was hired by the Department of the Army on July 17, 2005, as a
Heavy Mobile Equipment Repairer. He is a preference-eligible employee and was given
a Veterans Recruitment Appointment in the excepted service pursuant to the Jobs for
Veterans Act, Pub. L. No. 107-288, 116 Stat. 2033 (2002). He was removed from his
position on November 18, 2005, for misconduct. He subsequently filed a timely appeal
with the Board contesting his removal.
The administrative judge assigned to the appeal twice ordered Mr. Martin to
make a showing sufficient to establish that the Board had jurisdiction over his appeal.
Finding Mr. Martin’s responses insufficient, the administrative judge dismissed his
appeal for lack of jurisdiction. When the Board declined Mr. Martin’s petition for review,
the administrative judge’s initial decision became the final decision of the Board. Mr.
Martin now seeks review by this court.
DISCUSSION
Whether the Board has jurisdiction is a question of law that this court reviews de
novo. Hayes v. U.S. Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir. 2004). The appellant
has the burden of proving, by a preponderance of the evidence, that the Board has
jurisdiction over his appeal. 5 C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep't of Homeland
Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006).
Federal civilian employees may generally appeal to the Board from adverse
agency actions, such as removals, if they meet the requirements set forth in 5 U.S.C.
§ 7511(a)(1). See 5 U.S.C. §§ 7513(d), 7512(1). For a preference eligible employee in
the excepted service, such as Mr. Martin, section 7511(a)(1)(B) requires the employee
to have completed one year of current continuous service in the same or a similar
position. “Current continuous service” is defined by regulation as “a period of
employment or service immediately preceding an adverse action in the same or similar
positions without a break in Federal civilian employment of a workday.” 5 C.F.R.
§ 752.402(b).
2006-3270 2
Before his removal, Mr. Martin was continuously employed in his position from
July 17 to November 18, 2005, a period of four months. Accordingly, the Board has
jurisdiction over his appeal only if he was continuously employed in a similar
government position for the eight months ending on the workday immediately prior to
July 17, 2005. The only allegations Mr. Martin advanced as to his prior government
service relate to his employment as a supply clerk from January 1984 to July 1986.
Even assuming that position was “similar” to the one from which he was removed, it is
clear that there was a break of more than one workday between Mr. Martin’s service in
the 1980s and his service in 2005. Mr. Martin’s allegations thus do not support a claim
of current continuous service in the same or similar position, and the Board therefore
had no jurisdiction to address the merits of the appeal. For that reason, we affirm the
Board’s decision dismissing Mr. Martin’s appeal.
2006-3270 3