Unpublished Dispositionrobert L. Crawford, Petitioner, v. Merit Systems Protection Board, Respondent, 824 F.2d 976 (Fed. Cir. 1987)

Annotate this Case
U.S. Court of Appeals for the Federal Circuit - 824 F.2d 976 (Fed. Cir. 1987) April 13, 1987

Before SMITH, Circuit Judge, BENNETT, Senior Circuit Judge, and NEWMAN, Circuit Judge.

PER CURIAM.


DECISION

Petitioner appeals the final decision of the Merit Systems Protection Board (MSPB), No. SL07528610283, which on October 23, 1986, declined to review the initial decision of May 12, 1986, by the administrative judge who dismissed the case for lack of jurisdiction. We affirm.

OPINION

Petitioner, a former employee of the Tennessee Valley Authority (TVA), was a preference eligible in the excepted service who had not completed 1 year of current, continuous service in his position in a training program. He was removed, effective March 6, 1986, for unsatisfactory performance after approximately 9 months in his position.

The MSPB's dismissal for lack of jurisdiction was based upon petitioner's failure to meet the criteria of 5 U.S.C. § 7513(a) (1) (B) (1982). That section requires that a preference eligible must have completed 1 year of current, continuous service in one position, or in two or more positions which are similar, in order to have the right to appeal a removal to the MSPB. The MSPB concluded that petitioner's service with the TVA, although for a total of almost 2 years, was served in two positions which were not similar and thus he did not meet the required statutory definition of an "employee" entitled to appeal. This conclusion is supported by substantial evidence, by the definition of "same line of work" in the Federal Personnel Manual, and by the court's precedents. The MSPB decision is sustained. See 5 U.S.C. § 7703(c); Hayes v. Department of the Navy, 727 F.2d 1535 (Fed. Cir. 1984).