NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-3131
JACQUELINE RILEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: August 10, 2006
__________________________
Before MAYER, RADER, and LINN, Circuit Judges.
PER CURIAM.
Jacqueline Riley appeals the final decision of the Merit Systems Protection
Board, which upheld its initial decision dismissing her appeal for lack of jurisdiction.
Riley v. U.S. Dist. Court, E. Dist. Mo., CH-3443-05-0554-I-1 (MSPB Nov. 17, 2005). We
affirm.
We may only reverse a board’s decision if it was arbitrary, capricious, an abuse
of discretion, or unlawful; procedurally deficient; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c). Whether the board has jurisdiction over an appeal
is a question of law that we review de novo. See Herman v. Dep’t of Justice, 193 F.3d
1375, 1378 (Fed. Cir. 1999).
Riley had the burden to establish the board’s jurisdiction by presenting evidence
that she was an “employee” as defined under 5 U.S.C. § 7511. Although Riley claimed
that she was an employee in the competitive service and met the definition of section
7511(a), the record clearly indicates that her position was in the excepted service.
Moreover, she presented no evidence showing that she fell under subsection
7511(a)(1)(C)(i), which defines “employee” to include individuals in the excepted service
“who [are] not serving a probationary or trial period under an initial appointment pending
conversion to the competitive service.” Therefore, we find no error in the board’s factual
determinations and conclude that the board lacked jurisdiction over the appeal.
2006-3131 2