Lee v. Merit Systems Protection Board

         Appeal from the Merit Systems Protection Board in No. DA-0752-15-0388-I-1.

          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.

          Before O'Malley, Hughes, and Stoll, Circuit Judges.

          Hughes, Circuit Judge.

         Regina 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.

         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 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.

         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, 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).

         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 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).^[2] 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 ...