Kathryn Michelle Walker v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHRYN MICHELLE WALKER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3155
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-315H-12-0281-B-1.
______________________
Decided: December 9, 2014
______________________
K ATHRYN MICHELLE WALKER , of Middletown, Mary-
land, pro se.
K ATHERINE M. SMITH , Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
P OLISUK, General Counsel.
______________________
Before L OURIE, CHEN, and HUGHES , Circuit Judges.

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WALKER v. MSPB 2
P ER CURIAM .
Kathryn Walker petitions for review of the final deci-
sion of the Merit Systems Protection Board (Board), which
dismissed her appeal because it lacked jurisdiction under
5 C.F.R. § 315.806. Because we agree that the Board
lacked jurisdiction, we affirm.
BACKGROUND
On March 28, 2011, Ms. Walker began her employ-
ment with Army as a Training Technician at the U.S.
Armory School, Fort Benning, Georgia. Her appointment
was subject to a one-year probationary period. On Sep-
tember 11, 2011, before she completed her one-year
probationary period, Ms. Walker was promoted to an
Installation Transportation Officer position, located at
Fort Detrick, Maryland.
In a letter dated March 9, 2012, Army terminated Ms.
Walker’s employment. Although the termination letter
was dated March 9, 2012, the Defense Finance and Ac-
counting Service (DFAS), Army’s pay system, continued to
produce earning and leave (E&L) statements for two
additional pay periods. Specifically, Ms. Walker received
an E&L statement for the pay period ending March 24,
2012, indicating that she was paid for eighty hours of
annual leave during the pay period. In addition, Ms.
Walker received an E&L statement for the pay period
ending April 7, 2012, showing that she was in leave
without pay status for the entire pay period.
As of the date on the letter, however, Ms. Walker was
approximately two weeks short of completing her one-year
initial probationary period. The letter informed Ms.
Walker that she had been terminated during her initial
probationary period for post-appointment improper con-
duct and inadequate performance. The letter also notified
Ms. Walker that, as a probationary employee, she could
appeal the termination to the Board only if she could

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WALKER v. MSPB 3
make a non-frivolous allegation that her termination was
due to discrimination based on marital status or partisan
political reasons.
Ms. Walker appealed her termination to the Board.
The administrative judge (AJ) subsequently issued an
order advising Ms. Walker that, given her probationary
status, the Board lacked jurisdiction to hear her appeal,
unless she made a non-frivolous claim that her termina-
tion was based on partisan political reasons or marital
status under 5 C.F.R. § 315.806. The AJ further informed
Ms. Walker that she must carry the burden of establish-
ing the Board’s jurisdiction.
Later, the AJ dismissed Ms. Walker’s appeal for lack
of jurisdiction. The AJ found that Army terminated Ms.
Walker’s employment during her one-year probationary
period. In reaching this decision, the AJ rejected Ms.
Walker’s argument that her employment had continued
until April 7, 2012, the date of the final E&L statement.
Ms. Walker petitioned the Board for review and the Board
remanded the appeal to the AJ for a jurisdictional hearing
concerning the effect of the E&L statements and the
authority of the deciding official to terminate Ms. Walker.
On remand, the AJ heard testimony from Ms. Walker
and three agency employees. First, the Deputy Garrison
Commander who signed Ms. Walker’s termination letter
testified that she had authority to terminate Ms. Walker’s
employment and that the termination was effective
March 9, 2012. Second, the remaining two witnesses
established that the post-termination E&L statements did
not represent a belated separation, but instead reflected
only that DFAS was unaware of the separation until
several weeks after Ms. Walker’s termination. The unre-
butted testimony established that DFAS generates E&L
statements based on time cards submitted by Army.
After terminating Ms. Walker’s employment, Army
stopped sending time cards for her. Therefore, according

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WALKER v. MSPB 4
to DFAS rules, when DFAS stopped receiving time cards
for Ms. Walker, it generated E&L statements that indi-
cated that Ms. Walker was in leave status until Army
notified DFAS of Ms. Walker’s separation. The AJ char-
acterized these E&L statements as merely administrative
or clerical in nature and concluded that they did not affect
the March 9, 2012, termination date. By crediting Army’s
witnesses, the AJ dismissed Ms. Walker’s appeal because
the Board lacked jurisdiction. The Board agreed and
denied Ms. Walker’s petition for review. Ms. Walker
appealed to this Court.
Our review of a decision of the Board is limited. A
Board decision must be affirmed 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); Dickey v. Office of Pers. Mgmt., 419 F.3d 1336,
1339 (Fed. Cir. 2005). In this case, we review the ques-
tion of whether the Board has jurisdiction over an appeal
de novo. Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,
1483 (Fed. Cir. 1998).
D ISCUSSION
When reviewing cases involving probationary em-
ployees, the Board’s jurisdiction is particularly limited.
See Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 649 (Fed.
Cir. 1992). The probationary employee bears the burden
of proving jurisdiction by a preponderance of the evidence.
Stokes v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed.
Cir. 1985) (citing 5 C.F.R. § 1201.56(a)(2)).
Generally, probationary employees in the competitive
service who have less than one year of current, continuous
service have no statutory right to appeal a termination.
Mastriano v. Fed. Aviation Admin., 714 F.2d 1152, 1155
(Fed. Cir. 1983); 5 U.S.C. § 7511(a)(1) (excepting from the
definition of “employee” those individuals who have not

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WALKER v. MSPB 5
yet completed the one-year initial probation period).
Under regulations promulgated by the Office of Personnel
Management, the Board has jurisdiction over an appeal
by a probationary employee only when a non-frivolous
allegation is made that either (1) the termination was
“based on partisan political reasons or marital status” or
(2) the termination was based on pre-employment condi-
tions and the “termination was not effected in accordance
with the procedural requirements of [5 C.F.R. § 315.805].”
5 C.F.R. § 315.806(b)–(c). In contrast, if an individual
meets the definition of “employee” found in 5 U.S.C.
§ 7511(a)(1), that employee may appeal a removal from
employment to the Board. McCormick v. Dep’t of Air
Force, 307 F.3d 1339, 1340–41 (Fed. Cir. 2002) (citing 5
U.S.C. §§ 7701(a), 7512(1), 7513(d)).
In the present case, Ms. Walker does not assert that
jurisdiction is proper under 5 C.F.R. § 315.806. Instead,
Ms. Walker argues that her employment was not termi-
nated on March 9, 2012, as the AJ found, but was actually
terminated on April 7, 2012, after the completion of her
one-year probationary period for her initial appointment.
Ms. Walker further argues that she should receive credit
for the pay period during which DFAS placed her in
annual leave status and for the pay period during which
she was placed in leave without pay status. See 5 U.S.C.
§ 6302(d) (explaining that accrued annual leave “may be
granted at any time during the year as the head of the
agency concerned may prescribe”); 5 C.F.R. § 315.802(c)
(providing that “[a]bsence in nonpay status while on the
rolls . . . is creditable up to a total of 22 workdays.” (em-
phasis added)). Ms. Walker therefore argues that she
satisfies the definition of “employee” under § 7511(a)(1),
and the Board erred by applying the standard applicable
to probationary employees.
Ms. Walker’s argument fails, however, because it ig-
nores the testimony that the AJ found credible when
concluding that the Board lacked jurisdiction. Namely,

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WALKER v. MSPB 6
the AJ cited the testimony of the Deputy Garrison Com-
mander as establishing that the Commander had authori-
ty to terminate Ms. Walker’s employment without higher
approval and that the termination was effective on March
9, 2012, the date of the termination letter. At this point,
Ms. Walker was no longer “on the rolls,” as required by 5
C.F.R. § 315.802(c). In addition, the AJ relied on testimo-
ny confirming that the post-termination E&L statements
were not evidence that Ms. Walker was still serving as an
employee. Rather, the E&L statements indicated only
that DFAS had not yet received the separation paper-
work. The AJ permissibly credited this testimony and
concluded that Ms. Walker’s termination date was March
9, 2012, approximately two weeks prior to the end of her
one-year probationary period. See Frey v. Dep’t of Labor,
359 F.3d 1355, 1360–61 (Fed. Cir. 2004) (“The evaluation
of witness credibility is a matter within the discretion of
the AJ and is virtually unreviewable.” (internal quotation
marks omitted)). Ms. Walker has proposed no other basis
for altering the AJ’s conclusion that Ms. Walker was
terminated as of March 9, 2012. Because Ms. Walker was
still a probationary employee at the time of her termina-
tion, she has not carried her burden of establishing the
Board’s jurisdiction.
CONCLUSION
Because we agree with the Board that Ms. Walker
failed to carry her burden of establishing the Board’s
jurisdiction over her appeal, we affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.

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