Bofill v. Merit Systems Protection Board

26 F. App'x 916
CourtCourt of Appeals for the Federal Circuit
DecidedDecember 4, 2001
DocketNo. 01-3255
StatusPublished

This text of 26 F. App'x 916 (Bofill v. Merit Systems Protection Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bofill v. Merit Systems Protection Board, 26 F. App'x 916 (Fed. Cir. 2001).

Opinion

PER CURIAM.

Genaro Bofill seeks review of the final decision of the Merit Systems Protection Board (“the Board”) affirming the dismissal of his appeal for lack of jurisdiction. Bofill v. Dep’t of Agric., 90 M.S.P.R. 23 (2001). For the reasons stated below, this court affirms.

Mr. Bofill was employed with the Animal Plant Health Inspection Service (“APHIS”) as a Plant Protection Technician at the Port of Miami in Miami, Florida. APHIS is a division of the Department of Agriculture, (“the agency”). Mr. Bofill was assigned to Miami International Airport Operations, where his responsibilities included inspecting passengers, baggage, and cargo to enforce federal restrictions on the movement of plants, plant and animal products, animal by-products and equipment. Pursuant to 5 C.F.R. § 315.301, Mr. Bofill’s employment was subject to a one-year probationary period, which began on June 18, 2000, the day he was appointed.

On November 30, 2000, Mr. Bofill’s supervisor, Eric Babilonia, the Acting Director of Airport Operations for Concourse F, issued a letter terminating Mr. Bofill’s employment, effective at the close of business on December 2, 2000. The letter stated that the decision to terminate Mr. Bofill was based on several incidents of alleged misconduct occurring in October of 2000, during the probationary period of Mr. Bofill’s employment. The alleged misconduct included swapping work schedules with another Plant Protection Technician without authorization and contrary to direct verbal and written instructions, as well as allowing passengers to exit the facility without going through proper inspection procedures.

After receiving the termination letter, Mr. Bofill appealed the removal decision to the Board. On appeal, Mr. Bofill argued that the agency committed harmful procedural error by failing to give him prior notice of the proposed termination. On February 28, 2001, an administrative judge (“AJ”) of the Board dismissed Mr. Bofill’s appeal for lack of jurisdiction. The AJ noted that Mr. Bofill bears the burden of proving by preponderant evidence that the Board possesses jurisdiction over his appeal, citing 5 C.F.R. § 1201.56(a)(2)(i). The AJ found that Mr. Bofill failed to meet this burden. He did not dispute that his appointment was terminated during his initial, one-year probationary period and that the termination was based on alleged misconduct occurring after his appointment. Consequently, the AJ held inapplicable the procedural requirements of 5 C.F.R. § 315.805, including notice prior to termination. Those requirements apply only where termination was based on preappointment reasons. The AJ concluded that as a probationary employee terminat[918]*918ed for events occurring subsequent to his appointment, 5 C.F.R. § 315.806(b) limited Mr. BofiU’s appellate rights before the Board to allegations that his termination was the result of discrimination based on partisan political reasons or marital status. Because Mr. Bofill raised no allegations of discrimination based on partisan political reasons or marital status, the AJ dismissed his appeal for lack of jurisdiction.

On May 7, 2001, the Board affirmed the dismissal of Mr. Bofill’s appeal. The Board concluded that Mr. Bofill had presented no new, previously unavailable evidence, and that the AJ made no error of law or regulation that would affect the outcome of Mr. Bofill’s appeal. Bofill, 90 M.S.P.R. 23 (2001). Accordingly, the Board denied Mr. Bofill’s petition for review. Id. at 23. Mr. Bofill now appeals to this court.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994). This court’s scope of review over decisions of the Board is limited by statute. This court must affirm the decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995).

Whether the Board possessed jurisdiction to adjudicate an appeal is a question of law, which we review de novo. Forest, 47 F.3d at 410. As the Board noted, an employee must, by preponderant evidence, establish that the Board possesses jurisdiction. See Van Wersch v. Dep’t of Health and Human Servs., 197 F.3d 1144, 1147 (Fed.Cir.1999) (citing Forest, 47 F.3d at 410).

The jurisdiction of the Board is limited to those actions specifically granted by law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Antolin v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed.Cir.1989) (citing Cowan v. United States, 710 F.2d 803, 805 (Fed.Cir.1983)). Non-probationary employees have a statutory right to appeal their terminations to the Board. See 5 U.S.C. § 7513(d) (2000) (establishing appellate rights of “employee[s]”); id. at § 7511(a)(1)(A) (excluding probationary employees from the definition of “employee” in § 7513(d)); see also Anderson v. Merit Sys. Prot. Bd., 12 F.3d 1069, 1070-72 (Fed.Cir.1993) (affirming dismissal because the Board lacks jurisdiction over appeals by temporary employees challenging termination). No statute grants such appellate rights to probationary employees, however. See Mastriano v. Federal Aviation Admin., 714 F.2d 1152, 1155 (Fed.Cir.1983) (“There is no statutory authorization for an appeal by probationary employees to the [Board].”); see also Grigsby v. U.S. Dep’t of Commerce, 729 F.2d 772, 776 (Fed.Cir.1984) (holding the procedural protections of 5 U.S.C. § 7513 inapplicable to probationary employee’s appeal of his termination).

Probationary employees possess a far more limited right to appellate review by the Board of decisions to terminate their employment. See 5 C.F.R. § 315.806 (2001).

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