Stephanie E. Jankowski, Petitioner, v. Department of the Treasury, Respondent, 846 F.2d 77 (Fed. Cir. 1988)

DECISION

The decision of the Merit Systems Protection Board (board), in No. AT315H8710403, dismissing the petitioner's appeal for lack of jurisdiction, is affirmed.

OPINION

Petitioner, Stephanie E. Jankowski, received a career conditional appointment to the position of Clerk with the Internal Revenue Service (IRS), subject to a probationary period of one year. Less than one month after her appointment, the IRS fired her for unacceptable conduct in attempting to obtain special favors because of her employment with the IRS.

The administrative judge dismissed the appeal for lack of jurisdiction because Ms. Jankowski, as a probationary employee, could appeal to the board only if she alleged that the agency's action was based on marital status, partisan political reasons, or on conditions arising before her employment. 5 CFR 315.806(b); see Mastriano v. Federal Aviation Admin., 714 F.2d 1152, 1155 (Fed. Cir. 1983). She made no such allegations and the administrative judge properly dismissed the appeal for lack of jurisdiction.

In her petition to the full board, Ms. Jankowski set forth a history of her work as a volunteer for various political candidates as a basis for alleging that her termination was for partisan political reasons. As the notice of termination clearly shows, however, she was terminated for an entirely unrelated reason. This notice also gave her full information on the limited conditions under which she could appeal to the board. The board may grant a petition for review when it is established that new and material evidence is available that, despite due diligence, was not available earlier. 5 CFR 1201.115(a). That clearly was not the case here, as her petition shows on its face, and the board properly denied the petition for review.

Where the petitioner fails to raise an issue before the administrative judge and tries to raise the same issue before the full board, and the board properly denies review of the initial decision, the petitioner cannot raise that issue for the first time in this court. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1984).

We affirm the board's decision that it had no jurisdiction because it was not arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with law. See 5 USC 7703(c).