Kenneth v. Comley, Petitioner, v. Department of Transportation, Federal Aviationadministration, Respondent, 835 F.2d 872 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 835 F.2d 872 (Fed. Cir. 1987) Nov. 25, 1987

Before FRIEDMAN, PAULINE NEWMAN and ARCHER, Circuit Judges.

PER CURIAM.


DECISION

The final decision of the Merit Systems Protection Board (MSPB or board), No. SE315H8710027, dismissing petitioner's appeal for lack of jurisdiction, is affirmed.

OPINION

Petitioner Kenneth V. Comley was appointed on November 10, 1985 as a Civil Aviation Security Specialist, which was an excepted service position with the Federal Aviation Administration. Less than a year later, on October 10, 1986, he was removed for reasons not here pertinent and appealed to the MSPB. The Administrative Judge (AJ) found that the board's jurisdiction over an appeal by an excepted service appointee was limited by the definition of "employee" found at 5 U.S.C. § 7511(a) (1) (B) (1982). That section provides that an employee includes "a preference eligible in an Executive agency in the excepted service ... who has completed 1 year of current continuous service in the same or similar positions." Since Comley had not yet completed one year of service at the time of his removal, he did not qualify as an employee entitled to appeal to the board. See 5 U.S.C. § 7701(a) (1982). The AJ therefore dismissed petitioner's appeal for lack of jurisdiction and the full board denied review.

Since petitioner does not contest his status as an excepted service appointee who had not completed one year of continuous service, we agree that the MSPB correctly dismissed petitioner's appeal for lack of jurisdiction. Collaso v. Merit Systems Protection Bd., 775 F.2d 296, 297 (Fed. Cir. 1985). In the absence of jurisdiction, the other issues raised by petitioner cannot be considered in this proceeding. Saunders v. Merit Systems Protection Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985); Manning v. Merit Systems Protection Bd., 742 F.2d 1424, 1428-29 (Fed. Cir. 1984).