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
05-3165
LEIGHTON D. PHARR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: March 10, 2006
___________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) denied Leighton D. Pharr’s petition
for review of an Initial Decision dismissing his appeal for lack of jurisdiction. Pharr v.
Dep’t of Army, Docket No. DA-315H-04-0447-I-1 (M.S.P.B. Feb. 10, 2005) (Final
Order). Because the Board correctly determined that it did not have jurisdiction to
consider Mr. Pharr’s appeal, this court affirms.
BACKGROUND
On April 21, 2003, Mr. Pharr was appointed as a GS-5 Quality Assurance
Specialist (Ammunition), a competitive position with the Department of the Army. Mr.
Pharr’s appoint was subject to a one-year probationary period. The Army terminated
his employment based on a charge of “violence in the work place.” That termination
was effective April 14, 2004, about one week before the end of the probationary period.
Mr. Pharr timely appealed his termination to the Board. Before the Board, he argued
that the behavior leading to his termination was merely horseplay done in a friendly and
joking manner. Based on Mr. Pharr’s probationary status at the time of his termination,
the Board concluded that it lacked jurisdiction and dismissed Mr. Pharr’s appeal. Pharr
v. Dep’t of Army, Docket No. DA-315H-04-0447-I-1, slip op. at 3 (M.S.P.B. May 19,
2004) (Initial Decision).
DISCUSSION
In dismissing Mr. Pharr’s appeal, the Board noted 5 U.S.C. § 7701(a), which
limits its appellate jurisdiction to that granted by statute, law, or regulation. Initial
Decision, slip op. at 2. Probationary employees generally have no statutory appeal
rights because 5 U.S.C. § 7511(a) excludes individuals in competitive service serving
probationary or trial periods under initial employment from the definition of “employee.”
See Pervez v. Dep’t of Navy, 193 F.3d 1371, 1375 (Fed. Cir. 1999) (discussing 5 U.S.C.
§ 7511(a)(1)(A)). However, pursuant to 5 C.F.R. § 315.806, probationary employees
have a limited right of appeal for terminations alleged to be on the basis of partisan
political reasons or marital status. Id. Because Mr. Pharr did not assert that his
removal was premised on partisan political reasons or marital status discrimination, the
Board concluded that Mr. Pharr failed to meet his burden of proof to establish the
Board’s jurisdiction. Initial Decision, slip op. at 3.
On appeal, Mr. Pharr does not dispute that his termination was premised on his
alleged violent behavior, that the termination occurred while he was a probationary
05-3165 2
employee, or that 5 U.S.C. § 7511 provides no right of appeal for a probationary
employee. Instead, Mr. Pharr argues that he was deprived of his property interest in his
job without due process of law, thus raising a constitutional question.
To establish a procedural due process claim, Mr. Pharr must show that he has
some legitimate property or liberty interest in his employment. While procedural due
process is guaranteed by the Constitution, the property rights it protects are created not
by the Constitution, but by other sources of law. Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972). Mr. Pharr does not dispute that a probationary
employee has no property interest in their job in the absence of an employment contract
preventing dismissal except for good cause, or that probationary employees have no
due process rights unless the issue arose prior to their appointment as probationary
employees. Rather, Mr. Pharr cites Wieman v. Updegraff, 344 U.S. 183, 192 (1952), for
the proposition that the Constitution provides recourse for public servants whose
exclusion based on a statute is patently arbitrary or discriminatory. Thus, Mr. Pharr
argues that the absence of any property interest in his job pursuant to his status as a
probationary employee is patently arbitrary and unjust, especially given that he was
terminated only seven days from the end of his probationary period. Mr. Pharr’s
argument misreads Wieman. In Wieman, the Court struck down a state statute
requiring all state officers and employees to take a loyalty oath, which, among other
things, included provisions foreswearing membership in communist organizations. It
was the statute on its face, rather than as applied to a particular person or group, which
the Court found to be patently arbitrary and thus unconstitutional. Wieman, 344 U.S. at
219.
05-3165 3
While Mr. Pharr devotes a substantial portion of his brief to arguing the merits of
his dismissal, he never demonstrates that 5 U.S.C. § 7511, or any other statute or
regulation excluding probationary employees from most of the rights to appeal rights
enjoyed by regular employees, is itself patently arbitrary. Probationary employees are
most vulnerable to dismissal shortly before the end of their probationary period, Shaw v.
United States, 622 F.2d 520, 527 (Ct. Cl. 1980), so Mr. Pharr’s dismissal at that
particular time is not uniquely suspect or unjust. Mr. Pharr’s termination so close to the
end of his probationary period, while certainly unfortunate from his perspective, does
not bestow upon him the rights of a regular employee generally or a property right in his
employment in particular.
Because of his probationary status at the time of his termination, Mr. Pharr had
no property interest in his employment and thus no valid due process claim. As such,
this court affirms the Board’s Final Order denying review of the Board’s Initial Decision
dismissing Mr. Pharr’s appeal for lack of jurisdiction.
05-3165 4