United States Court of Appeals
for the Federal Circuit
______________________
REGINA E. LEE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1232
______________________
Appeal from the Merit Systems Protection Board in
No. DA-0752-15-0388-I-1.
______________________
Decided: May 25, 2017
______________________
REGINA E. LEE, DeSoto, TX, 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 O’MALLEY, HUGHES, and STOLL, Circuit Judges.
HUGHES, Circuit Judge.
Regina Lee appeals a final decision of the Merit Sys-
tems Protection Board dismissing her appeal for lack of
2 LEE V. MSPB
jurisdiction. Because Ms. Lee was not subject to an
adverse action appealable to the Board, we affirm.
I
On March 16, 2008, Ms. Lee began an appointment
under the Federal Career Intern Program (FCIP) with
U.S. Citizenship and Immigration Services, Department
of Homeland Security. 1 Prior to her appointment in the
FCIP, Ms. Lee had completed almost six years of federal
service under a series of term appointments. On March 5,
2010, the agency notified Ms. Lee that her FCIP appoint-
ment would expire on March 15, 2010, and that upon
completion of the appointment, the agency would not
convert it into a competitive service appointment. Conse-
quently, when Ms. Lee completed her FCIP term, she was
terminated from federal service.
Ms. Lee appealed her termination to the Board. The
Administrative Judge dismissed Ms. Lee’s case for lack of
jurisdiction, and the Board affirmed. Ms. Lee appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II
We review the Board’s decision to determine if it is:
“(1) arbitrary, capricious, an abuse of discretion, other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
1 The FCIP was an intern program created by Ex-
ecutive Order No. 13,162 to “attract exceptional men and
women to the Federal workforce who have diverse profes-
sional experiences, academic training, and competencies,
and to prepare them for careers in analyzing and imple-
menting public programs.” 65 Fed. Reg. 43,211 (July 6,
2000). It was terminated on March 1, 2011 and replaced
with the Pathways Program.
LEE V. MSPB 3
dence.” 5 U.S.C. § 7703(c). The Board’s determination
that it lacks jurisdiction is a question of law that we
review de novo. Bennett v. Merit Sys. Prot. Bd., 635 F.3d
1215, 1218 (Fed. Cir. 2011).
The Board’s jurisdiction “is limited to those matters
over which it has been given jurisdiction by law, rule, or
regulation.” Id. Ms. Lee alleges that the Board has
jurisdiction over her appeal pursuant to 5 U.S.C. § 4303
and 5 C.F.R. § 1201.3(a)(1). Ms. Lee bears the burden of
proving the Board’s jurisdiction over her appeal by a
preponderance of the evidence. Id.
We have previously held that the Board lacks jurisdic-
tion over appeals from certain FCIP interns who are not
converted to competitive service after the expiration of
their appointment term. Rocha v. Merit Sys. Prot. Bd.,
688 F.3d 1307, 1311 (Fed. Cir. 2012). 2 An agency’s deci-
sion not to convert an FCIP intern to competitive service
is not an “adverse action” appealable to the Board, see
5 C.F.R. § 1201.3(a)(1), because the implementing regula-
tions clearly explain that interns have no right to further
federal employment after their appointments expire:
(6) Conversion to Competitive Service. Except as
provided in paragraph (o)(6)(ii) of this section,
service as a career intern confers no rights to fur-
ther Federal employment in either the competi-
2 The Board has concluded that an FCIP intern can
only establish an adverse action by proving: “(1) Immedi-
ately prior to his FCIP appointment, he held a career or
career-conditional appointment in the same agency;
(2) his failure to complete the internship successfully was
for reasons unrelated to misconduct or suitability; and
(3) he is an ‘employee’ within the meaning of 5 U.S.C.
§ 7511.” Scull v. Dep’t of Homeland Sec., 113 M.S.P.R.
287, 295 (2010), aff’d, 515 Fed. App’x 885 (Fed. Cir. 2013).
4 LEE V. MSPB
tive or excepted service upon expiration of the in-
ternship period.
(i) Competitive civil status may be granted to ca-
reer interns who successfully complete their in-
ternships and meet all qualification, suitability,
and performance requirements . . . .
(ii) An employee who held a career or career-
conditional appointment in an agency immediate-
ly before entering the FCIP in the same agency,
and who fails to complete the FCIP for reasons
unrelated to misconduct or suitability, shall be
placed in a career or career-conditional position in
the current agency . . . .
(7) Terminations. As a condition of employment,
the appointment of a career intern expires at the
end of the 2-year internship period, plus any ex-
tension. . . . If an employee is not converted to a
career or career-conditional appointment, the ca-
reer intern appointment terminates, unless the
employee is specifically eligible for placement un-
der paragraph (o)(6)(ii) of this section.
5 C.F.R. § 213.3202(o) (2006).
Ms. Lee does not focus on this regulation, but argues
that the Board erred by ignoring Executive Order No.
13,162, which created the FCIP. 65 Fed. Reg. 43,211
(July 6, 2000). The order is very similar to the promul-
gated regulation, with one notable difference. The order
states, “[e]xcept as provided in subsections (4) and (5) of
this section, service as a Career Intern confers no rights
to further Federal employment in either the competitive
or excepted service upon expiration of the internship
period.” Id. According to subsection 4, “[c]ompetitive civil
service status may be granted to a Career Intern who
satisfactorily completes the internship and meets all other
requirements prescribed by the OPM.” Id. Because this
LEE V. MSPB 5
is listed as an exception, Ms. Lee argues that her success-
ful completion of the internship conferred upon her rights
to further federal employment.
We disagree. We find the executive order and the
regulation are consistent. The order states that competi-
tive civil status may be granted to a successful intern, not
that it shall be granted. The “exception” embodied by
subsection (4) gave Ms. Lee the right to be considered for
conversion, not the automatic right to be converted to
competitive civil service status.
Further, the executive order explicitly states that the
order “does not create any right or benefit, substantive or
procedural, enforceable in law or equity, by a party
against the United States, its agencies, its officers or
employees, or any other person.” Id. at 43,212. There-
fore, to the extent that § 213.3202(o)(6) prevents the
Board from exercising jurisdiction over Ms. Lee’s case, the
executive order cannot cure that deficiency.
Ms. Lee’s successful completion of her internship and
satisfaction of OPM’s other requirements did not guaran-
tee her the right to further federal employment when her
internship expired. Therefore, the Board properly deter-
mined that it did not have jurisdiction over Ms. Lee’s
appeal because she did not suffer an adverse action.
AFFIRMED
No costs.