REGINA E. LEE, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
from the Merit Systems Protection Board in No.
ReginaE. 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.
O'Malley, Hughes, and Stoll, Circuit Judges.
Hughes, Circuit Judge.
Lee appeals a final decision of the Merit Systems Protection
Board dismissing her appeal for lack of jurisdiction. Because
Ms. Lee was not subject to an adverse action appealable to
the Board, we affirm.
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. 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 appointment would expire on
March 15, 2010, and that upon completion of the appointment,
the agency would not convert it into a competitive service
appointment. Consequently, when Ms. Lee completed her FCIP
term, she was terminated from federal service.
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).
review the Board's decision to determine if it is:
"(1) arbitrary, capricious, an abuse of discretion,
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evi- 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).
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.
previously held that the Board lacks jurisdiction 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). An agency's decision 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 regulations
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 further Federal employment in
either the competitive or excepted ...