976 F. 2d 747 - Thomas v. Merit Systems Protection Board

Oscar L. Thomas, a Veteran's Readjustment Appointee, appeals the initial decision of the Merit Systems Protection Board (MSPB) which dismissed, for lack of jurisdiction, his appeal of the removal action taken against him by the Department of the Army during his probationary period.1 The MSPB denied Thomas' petition for review of the initial decision, and the initial decision became final on 17 October 1991. Affirmed.

Thomas appealed his termination to the MSPB, contending that his removal was based on partisan political reasons and marital status discrimination. The Administrative Judge (AJ) found that Thomas had failed to set forth non-frivolous allegations concerning the grounds contained in his petition. Consequently the AJ found that Thomas had not established that the MSPB had jurisdiction to hear his appeal. The AJ instead found that Thomas was terminated during his probationary period for post-appointment reasons, namely unacceptable job performance.

This court's review of MSPB decisions is limited, and the decision must be affirmed unless it is found to be:

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

As the AJ correctly noted, Thomas has the initial burden of proving by a preponderance of the evidence that the MSPB has jurisdiction over his appeal.3 The AJ found that Thomas had failed to carry his burden, and this court agrees. On the basis of the record before us, we are unable to find that the decision of the MSPB was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. There being no jurisdiction, the court is unable to reach the other issues advanced by Thomas. The decision of the MSPB is affirmed.