Elena A. Loucks v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3236
ELENA A. LOUCKS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Elena A. Loucks, of San Diego, California, pro se.
Dana DeLorenzo, Attorney-Advisor, Office of the General Counsel, Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, and Keisha Dawn Bell, Deputy General
Counsel.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3236
ELENA A. LOUCKS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in SF315H090170-I-1.
__________________________
DECIDED: January 6, 2010
__________________________
Before LOURIE, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Elena A. Loucks (“Loucks”) seeks review of a final decision of the Merit Systems
Protection Board (“Board”) dismissing her appeal of a decision of the Department of the
Navy (“Navy”), which terminated Loucks from her position as a probationary employee.
Loucks v. Dep’t of the Navy, SF315H090170-I-1 (M.S.P.B. May 27, 2009) (“Final
Decision”). Because the Board correctly determined that it lacked jurisdiction over
Loucks’s appeal, we affirm.
Loucks held a series of civilian positions within the Navy between 2000 and
2008, the most recent of which is at issue in this appeal. She previously worked as a
Food Service Worker, NA-2 (September 11, 2000 to May 20, 2001); a Recreational

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Assistant, NF-2 (October 1, 2001 to November 1, 2002); a Sales Store Checker, GS-3
(November 4, 2002 to April 14, 2004); an untitled worker in the Navy Exchange Service
Command Optical Shop (March 30, 3005 to April 4, 2005); and a Health Technician,
GS-4 (November 27, 2006 to October 1, 2007). On November 26, 2007, she was hired
as a Health Technician, GS-6, under a career-conditional appointment at the Navy
Medical Center, San Diego, California. The appointment was subject to the completion
of a one-year probationary period, beginning November 26, 2007. On November 18,
2008, before the probationary period was completed, Loucks was terminated due to
inadequate performance.
On December 16, 2008, Loucks filed an appeal at the Board, challenging the
Navy’s termination of her most recent position as a Health Technician. The Board
dismissed the appeal for lack of jurisdiction because she was a probationary employee
at the time of her termination and was thus not an “employee” within the meaning of
5 U.S.C. § 7511(a)(1) (2006). Loucks v. Dep’t of the Navy, SF315H090170-I-1
(M.S.P.B. Feb. 11, 2009) (“Initial Decision”). Under 5 U.S.C. § 7511(a)(1)(ii), a
probationary employee must complete “1 year of current continuous service under other
than a temporary appointment limited to 1 year or less” in order to qualify as an
“employee” over whom the Board has jurisdiction. Under 5 C.F.R. § 315.802(b) (2009),
a probationary employee’s “[p]rior Federal civilian service . . . counts toward completion
of probation when the prior service: (1) Is in the same agency, e.g., Department of the
Army; (2) Is in the same line of work (determined by the employee’s actual duties and
responsibilities); and (3) Contains or is followed by no more than a single break in
service that does not exceed 30 calendar days.” Because Loucks had a break in
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service of approximately 56 days before being hired for her most recent career-
conditional appointment, the Board concluded that her prior service could not count
towards the completion of the probationary period. Initial Decision at 7. Accordingly,
the Board held that it lacked jurisdiction over her appeal. Id.
The Initial Decision became the Final Decision of the Board when the Board
denied Loucks’s petition for review. Final Decision at 1-2. Loucks then filed a timely
petition for review by this court. We have jurisdiction over Loucks’s petition pursuant to
28 U.S.C. § 1295(a)(9).
We must affirm the Board’s decision 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.” Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984). Whether the Board has jurisdiction over an appeal is a question of law, which
this Court reviews de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.
Cir. 2008). The appellant has the burden of establishing the Board’s jurisdiction. 5
C.F.R. § 1201.56(a)(2)(i); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed.
Cir. 2006) (en banc).
On appeal, Loucks argues that the Board misapplied 5 C.F.R. § 315.802. She
contends that she has already served the one-year probationary period, which she
measures “from 10-01-2001 to 11-01-2002” and "until 04-14-2004 for [a] total of 2 years
and 6 months.” Petr.’s Informal Br. ¶ 7. By citing these periods, Loucks apparently
refers to her previous positions as a Recreational Assistant (October 1, 2001 to
November 1, 2002) and Sales Store Checker (November 4, 2002 to April 14, 2004).
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But even if these positions could somehow be considered to involve “the same line of
work” as her Health Technician position for purposes of the second prong of 5 C.F.R.
§ 315.802(b), her previous positions would still not count towards the completion of her
later probationary period because they ended more than 30 calendar days before she
was hired for the Health Technician position. Because her previous employment fails to
satisfy the third prong of 5 C.F.R. § 315.802(b), her probationary period remained
uncompleted at the time of her termination, and the Board lacked jurisdiction over her
appeal.
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.

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