NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALICE S. DAROSA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1152
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-315H-16-0116-I-1.
______________________
Decided: April 10, 2017
______________________
ALICE S. DAROSA, Blythewood, SC, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
2 DAROSA v. MSPB
Alice S. DaRosa (“DaRosa”) seeks review of the final
order of the Merit Systems Protection Board (“the Board”)
dismissing her appeal for lack of jurisdiction. See DaRosa
v. Dep’t of Veterans Affairs, No. AT-315H-16-0116-I-1,
2016 WL 4987250 (M.S.P.B. Sept. 13, 2016) (“Final Or-
der”). Because the Board correctly concluded that it
lacked jurisdiction over DaRosa’s appeal, we affirm.
BACKGROUND
The Department of Veterans Affairs (“VA”) appointed
DaRosa to the position of Medical Support Assistant in
the excepted service, effective November 2, 2014. Resp’t’s
App. (“R.A.”) 28–29, 31–33. Her appointment was subject
to a one-year probationary period that began on Novem-
ber 2, 2014. R.A. 28, 31. In October 2015, the VA termi-
nated DaRosa’s employment due to her disrespectful
conduct towards a patient. R.A. 22–25, 30, 34–36. Da-
Rosa appealed her termination to the Board.
In an initial decision, the administrative judge (“AJ”)
dismissed the appeal for lack of jurisdiction because
DaRosa did not satisfy the definition of “employee” under
5 U.S.C. § 7511(a)(1). DaRosa v. Dep’t of Veterans Affairs,
No. AT-315H-16-0116-I-1, 2016 WL 881004 (M.S.P.B.
Mar. 1, 2016). The AJ found that DaRosa was a prefer-
ence eligible in the excepted service, and thus that 5
U.S.C. § 7511(a)(1)(B) applied, under which an “employee”
must have “completed 1 year of current continuous service
in the same or similar positions in an Executive agency
. . .” (emphasis added). Although DaRosa did not dispute
that she was terminated within the first year of her
employment with the VA, she submitted evidence show-
ing that she was previously employed by the Army from
March 16, 2009 to November 13, 2011 in a competitive-
service position. The AJ rejected that evidence, however,
noting the significant time gap between the conclusion of
DaRosa’s prior service on November 13, 2011 and her
appointment to her most recent position on November 2,
DAROSA v. MSPB 3
2014. Given that break in service, the AJ concluded that
DaRosa had not completed one year of “current continu-
ous service” as required by the statute.
DaRosa petitioned for review by the full Board. The
Board denied her petition and adopted the AJ’s initial
decision as its final decision. Final Order, at ¶ 1. The
Board agreed with the AJ that DaRosa was not an “em-
ployee” under 5 U.S.C. § 7511(a)(1)(B) because she failed
to satisfy the one-year “current continuous service” re-
quirement and her prior federal service could not “be used
to tack on” to meet that requirement. Id. at ¶ 6.
DaRosa timely appealed from the Final Order to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review a determination of
the Board’s jurisdiction de novo as a question of law, and
review any underlying factual findings for substantial
evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008).
DaRosa argues that the Board failed to adequately
consider her prior federal service, including her appoint-
ment to an excepted-service position in August 2007 and
her completion of a probationary period after that ap-
pointment, as well as her subsequent employment in a
competitive-service position from March 16, 2009 to
November 13, 2011. DaRosa also argues that the Board
failed to properly consider her status as a veteran. The
government responds that the Board considered all rele-
vant facts and law and correctly concluded that it lacked
jurisdiction over DaRosa’s appeal.
4 DAROSA v. MSPB
We agree with the government that the Board lacked
jurisdiction over DaRosa’s appeal. The Board’s jurisdic-
tion is “limited to actions made appealable to it by law,
rule, or regulation.” Lazaro v. Dep’t of Veterans Affairs,
666 F.3d 1316, 1318 (Fed. Cir. 2012) (citing 5 U.S.C.
§ 7701(a)). As an appellant, DaRosa bore the burden of
establishing the Board’s jurisdiction by a preponderance
of the evidence, 5 C.F.R. § 1201.56(b)(2)(i)(A), but she has
failed to satisfy that burden.
To qualify as an employee with the right to appeal a
removal to the Board, DaRosa must satisfy the definition
of “employee” under 5 U.S.C. § 7511(a)(1), which provides
in relevant part:
For purposes of this subchapter, “employee”
means:
(A) an individual in the competitive service—
(i) who is not serving a probationary or trial
period under an initial appointment; or
(ii) who has completed 1 year of current con-
tinuous service under other than a tempo-
rary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service
who has completed 1 year of current continu-
ous service in the same or similar positions—
(i) in an Executive agency; or
(ii) in the United States Postal Service or
Postal Regulatory Commission; and
(C) an individual in the excepted service (other
than a preference eligible)—
(i) who is not serving a probationary or trial
period under an initial appointment pend-
ing conversion to the competitive service;
or
DAROSA v. MSPB 5
(ii) who has completed 2 years of current con-
tinuous service in the same or similar po-
sitions in an Executive agency under other
than a temporary appointment limited to 2
years or less.
5 U.S.C. § 7511(a)(1) (2015).
It is undisputed that the VA appointed DaRosa to,
and then removed her from, a position in the excepted
service, and that she was a preference eligible. Thus,
Subsection (B) is the relevant portion of the statute that
applied to DaRosa. Under that subsection, an employee
must have “completed 1 year of current continuous service
in the same or similar positions in an Executive agency
. . . .” The question, then, is whether DaRosa satisfied the
one-year “current continuous service” requirement at the
time of her separation from the VA, not whether she was
properly required to, or had completed, a one-year proba-
tionary period.
As the Board correctly found, DaRosa did not and
cannot make a nonfrivolous allegation that she completed
one year of “current continuous service” as required by
the statute. DaRosa does not dispute that her employ-
ment with the VA as a Medical Support Assistant was
terminated before her one-year work anniversary. There-
fore, she did not complete one year of service at the VA
when she was terminated.
Moreover, the Board did not err in concluding that
DaRosa could not “tack” her prior federal service towards
her most recent federal employment to satisfy the one-
year “current continuous service” requirement. The
Board has interpreted “current continuous service” to
mean “service immediately prior to the action at issue
without a break in service of a work day.” McCrary v.
Dep’t of the Army, 103 M.S.P.R. 266, 270 (2006) (citing 5
C.F.R. § 752.402). DaRosa does not challenge that inter-
pretation either before the Board or on appeal. It is
6 DAROSA v. MSPB
undisputed that she had a break in service of almost three
years between November 13, 2011 and November 2, 2014.
Because her November 2, 2014 appointment as a Medical
Support Assistant was preceded by that break in service
of more than one workday, the Board correctly concluded
that she may not “tack” her prior federal service onto her
most recent federal employment to satisfy the one-year
“current continuous service” requirement.
Accordingly, we conclude that the Board correctly de-
termined that it lacked jurisdiction over DaRosa’s appeal.
CONCLUSION
We have considered DaRosa’s remaining arguments,
but find them to be unpersuasive. For the foregoing
reasons, we affirm the Board’s decision dismissing Da-
Rosa’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.