Bombeva v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: August 15, 2025
• Docket: 24-2214
• Status: Unpublished

Opinion

Case: 24-2214 Document: 42 Page: 1 Filed: 08/15/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

TSVETANA D. BOMBEVA, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

DEPARTMENT OF THE AIR FORCE, Intervenor ______________________

2024-2214 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-0752-22-0350-I-1. ______________________

Decided: August 15, 2025 ______________________

TSVETANA DIMITROVA BOMBEVA, Ramstein Air Base, Germany, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. Case: 24-2214 Document: 42 Page: 2 Filed: 08/15/2025

LAURA OFFENBACHER ARADI, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, for intervenor. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM. ______________________

Before HUGHES, LINN, and CUNNINGHAM, Circuit Judges. PER CURIAM. Tsvetana Bombeva appeals the Merit Systems Protec- tion Board’s final order, which denied Ms. Bombeva’s peti- tion for review and affirmed the Board’s initial decision that dismissed her appeal for lack of jurisdiction. Because the Merit Systems Protection Board’s decision was in ac- cordance with the law and supported by substantial evi- dence, we affirm. I Ms. Bombeva was appointed to a position as an Intelli- gence Specialist (Linguist) by the Department of the Air Force in December 2020. S.A. 6, 99.1 She was removed from this position in March 2022 based on her alleged failure to meet a condition of employment with respect to her secu- rity clearance. S.A. 6. In April 2022, she appealed her removal to the Board. S.A. 6. In May 2022, the administrative judge issued an Acknowledgement Order notifying Ms. Bombeva that it might lack jurisdiction over her appeal and advising her to prove jurisdiction by the close-of-record date. S.A. 7. She timely filed a jurisdictional submission to which the agency responded. S.A. 7. The agency also filed a motion to dismiss her appeal. S.A. 7.

1 “S.A.” refers to the supplemental appendix (ECF No. 22) submitted by Intervenor. Case: 24-2214 Document: 42 Page: 3 Filed: 08/15/2025

BOMBEVA v. MSPB 3

In June 2022, the administrative judge issued an ini- tial decision dismissing Ms. Bombeva’s appeal for lack of jurisdiction. S.A. 15. The administrative judge noted that the Board’s jurisdiction over appeals from adverse actions, including removals, arises from 5 U.S.C. ch. 75 subch. II. S.A. 9. Some employees within the intelligence component of the Department of Defense or an intelligence activity of a military department covered under subchapter I of chap- ter 83 of title 10 are in the excepted service and are not preference eligible. S.A. 10–11; see 5 U.S.C. § 7511(b)(8). These individuals are excluded from the class of individu- als who can appeal adverse actions to the Board. S.A. 10 (citing 5 U.S.C. §§ 7511(b)(8), 7511(b)(10), 7512, 7513(d); 5 C.F.R. §§ 752.401(d)(9), 752.405(a)). The administrative judge determined that Ms. Bombeva’s position as an Intel- ligence Specialist within the agency—a military depart- ment—meant that she “served in a full-time, permanent position in the excepted service.” S.A. 11. The administra- tive judge also found that the record did not support that she was preference-eligible. S.A. 12. The administrative judge concluded that, therefore, “she had no right to appeal her termination to the Board . . . and the Board lacks juris- diction on that basis.” Id. Ms. Bombeva filed a petition for review with the full Board, which was denied. S.A. 25–26. The Board concluded there was no error with the administrative judge’s analysis of jurisdictional issues nor the ultimate conclusion that the Board lacks jurisdiction. S.A. 26. Ms. Bombeva timely ap- pealed. II We must affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Perlick v. Dep’t of Veterans Affs., Case: 24-2214 Document: 42 Page: 4 Filed: 08/15/2025

104 F.4th 1326, 1329 (Fed. Cir. 2024). Substantial evi- dence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). III Ms. Bombeva contends that the Board erred in several respects. We address each alleged error in turn. Ms. Bombeva primarily argues that she never held the position of intelligence specialist because, while she was hired into that position, on her first day she was detailed to the National Security Agency to serve as an “Alaska Learning Center . . . admin and tutor.” Petitioner’s Infor- mal Br. 5. Ms. Bombeva contends that the Board ignored pertinent evidence and relied only on “fraudulent” paper- work. First, under § 7511(b)(8), it is immaterial what Ms. Bombeva’s actual job duties were, because the text of the statute only contemplates the nature of the position held, not the job duties actually executed by the employee in that position. Second, substantial evidence supports the Board’s conclusion that Ms. Bombeva’s position was “intel- ligence specialist,” not “tutor.” See S.A. 11 (citing the evi- dence the administrative judge relied on that showed Ms. Bombeva held the position of intelligence specialist). Ms. Bombeva contends that her Standard Form 50 (SF-50) was fraudulent and therefore should not be relied on. But Ms. Bombeva’s issue with the document was that it did not reflect that she had converted to competitive service in 2015—not that her position had been erroneously listed. See S.A. 65. In any case, the administrative judge cited to a number of documents in concluding that it was “undis- puted” that Ms. Bombeva held the position of intelligence specialist. S.A. 11; see also S.A. 35, 38, 67. Because Ms. Bombeva was employed as an intelligence specialist in the Defense Civilian Intelligence Personnel System, S.A. 66, and because she does not contend that she was a pref- erence-eligible veteran, S.A. 33, we conclude that the Board Case: 24-2214 Document: 42 Page: 5 Filed: 08/15/2025

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did not err in determining that Ms. Bombeva lacked appeal rights under § 7511(b)(8). Second, Ms. Bombeva contends that 10 U.S.C. § 1601, which authorizes the Secretary of Defense to establish de- fense intelligence positions in the excepted service, does not apply to her former position as an intelligence special- ist because it applies only to Senior Level positions. Peti- tioner’s Informal Br. 23. Section 1601 states that the Secretary of Defense may establish, as positions in the excepted service, such defense intelligence positions in the Department of Defense as the Secretary determines necessary to carry out the intelligence functions of the Depart- ment, including . . . Intelligence Senior Level posi- tions. (emphasis added). “[T]he term ‘including’ is not [an] all-em- bracing definition, but connotes simply an illustrative ap- plication of the general principle.” Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941). “In- cluding” is a non-exclusive term, and we do not read the term “including” to limit the statute to only Intelligence Senior Level positions. We conclude that Ms. Bombeva’s position as an intelligence officer within the Air Force, which is a department within the Department of Defense, 10 U.S.C. § 111(8), falls within the ambit of § 1601. Third, Ms. Bombeva argues that the administrative judge “ignor[ed] and mischaracteriz[ed] the record” in find- ing that Ms. Bombeva did not make a nonfrivolous allega- tion of current continuous service that would render her an employee under § 7511(a)(1)(C)(ii). Petitioner’s Informal Br. 16. We need not consider this issue, because the conclu- sion that Ms. Bombeva was not an employee with Board appeal rights due to her position as an intelligence special- ist is dispositive of the issue of Board jurisdiction. Even if she non-frivolously alleged current continuous service based upon prior positions she held, it would not change Case: 24-2214 Document: 42 Page: 6 Filed: 08/15/2025

the outcome, which the administrative judge acknowl- edged. See S.A. 13 (“[E]ven assuming . . . her former posi- tion were vested with appeal rights . . . she forsook them when she moved into an excepted service intelligence posi- tion.”). Finally, Ms. Bombeva contends that the Board failed to consider the merits of the agency’s removal action, includ- ing that the agency violated its regulations, that the condi- tion she failed to meet was not a bona fide condition, and that her job did not require a security clearance. Peti- tioner’s Informal Br. 7–11, 15, 21–23, 28–29. Unless there is an appealable adverse action over which the Board has jurisdiction, the Board may not render a decision on alleged agency wrongdoing. See Garcia v. Dept. of Homeland Sec., 437 F.3d 1322, 1342–43 (Fed. Cir. 2006) (articulating that the Board does not have jurisdiction over “naked” claims unaccompanied by an appealable action over which the Board does have jurisdiction). Because Ms. Bombeva does not have Board appeal rights, the Board properly con- cluded that it did not have jurisdiction to address her alle- gations of agency wrongdoing. IV We have considered Ms. Bombeva’s remaining argu- ments and find them unpersuasive. Because we do not find reversible error in the Board’s decision, and because that decision is supported by substantial evidence, we affirm the Board’s decision. AFFIRMED COSTS No costs.