When a probationary employee raises an allegation of discrimination based on marital status or partisan politics, the first step is the jurisdictional inquiry — i.e. a determination of whether the probationary employee's appeal contains a facially nonfrivolous allegation of such discrimination. Stokes v. Federal Aviation Admin., 761 F.2d 682, 685-86 (Fed. Cir. 1985). If jurisdiction is initially established, then as a second step the AJ conducts a hearing on the factual issues of whether such discrimination existed and was the basis for the probationer's discharge. Id. The probationer bears the burden of proving the discrimination by a preponderance of the evidence.
The Board correctly determined that Kennington did not make a nonfrivolous allegation of partisan political discrimination. Stokes v. Federal Aviation Admin., 761 F.2d 682, 685-86 (Fed. Cir. 1985). Kennington did not allege, for example, that his termination was a result of his support of, or opposition to, President Obama or because of any affiliation with a particular party or candidate.
By statute, the Board lacks jurisdiction over appeals by probationary employees challenging a termination of employment. 5 U.S.C. §§ 7511(a)(1)(A), 7513(d); Stokes v. Fed. Aviation Admin., 761 F.2d 682, 684 (Fed. Cir. 1985). By regulation, the Board has jurisdiction over appeals by probationary employees only if their employment was terminated because of partisan political or marital status discrimination.
"The probationary employee bears the burden throughout of establishing jurisdiction." Stokes v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed. Cir. 1985). Ms. Dvortsin does not allege that her termination was due to partisan political reasons, and so relies on marital status discrimination.
Accordingly, he was a probationary employee at the time of his termination. Because the Board retains jurisdiction over appeals involving probationary employees terminated for post-appointment reasons only when there is a nonfrivolous allegation of discrimination based on partisan political reasons or marital status, see Stokes v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed. Cir. 1985), and because Mr. Motley had alleged discrimination based solely upon his prior military service rather than partisan politics or marital status, the AJ dismissed his termination appeal for lack of jurisdiction. Initial Decision at 4.
"The probationary employee bears the burden throughout of establishing jurisdiction." Stokes v. Fed. Aviation Admin., 761 F.2d 682, 685 (Fed. Cir. 1985). III.
5 U.S.C. § 7703(c). The Board's jurisdiction to hear appeals from probationary employees terminated for post-appointment reasons is defined in 5 CFR § 315.806.See Stokes v. Federal Aviation Admin., 761 F.2d 682, 684-685 (Fed. Cir. 1985). It was Ms. Chase-Baker's burden to establish that the Board had jurisdiction of her appeal. See 5 CFR § 1201.56(a)(2)(i) ("The appellant has the burden of proof, by a preponderance of the evidence, with respect to . . . [i]ssues of jurisdiction. . . ."). Ms. Chase-Baker's allegations that she was dismissed because of her marital status and because of existing pre-appointment conditions do not meet this burden.
And our cases generally parrot this reasoning. But see Stokes v. Federal Aviation Admin., 761 F.2d 682, 687 (Fed. Cir. 1985) (Board dismissal of a probationary employee's appeal for "`lack of jurisdiction' . . . when . . . the Board goes on to determine the entire case . . . is . . . inappropriate. It is at best incongruous to speak as though the jurisdictional issue is all that has been decided when it is the entire case that has been decided."). There is an explanation (or motivation, on the Government's part) for this Alice-in-Wonderland view of jurisdiction.
When we speak here of an issue involving the "jurisdiction" of the MSPB, we are referring to the power of the MSPB to hear and decide a case — subject matter jurisdiction. See, e.g., Stokes v. Federal Aviation Admin., 761 F.2d 682, 685 (Fed. Cir. 1985) ("Jurisdiction means the right or power of a tribunal to act."). Sometimes the question of subject matter jurisdiction gets confused with the question of entitlement to relief, that is, whether a cause of action has been stated in the complaint, or later proved.
An employee who is on a probationary period under an initial appointment does not have a statutory right to review an adverse action against them to the MSPB. See 5 U.S.C. §§ 7511(a)(1)(A)(i); 7513(d); see also Stokes v. F.A.A., 761 F.2d 682, 684 (Fed. Cir. 1985). However, probationary employees have limited appeal rights before the MSPB under longstanding Office of Personnel Management regulation. Stokes, 761 F.2d at 684-85; 5 C.F.R. § 315.806.