JOHN F. DESMOND V. DEPARTMENT OF DEFENSE No. 90-6118 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Brief For The Department Of Defense In Opposition OPINIONS BELOW The opinions of the court of appeals, Pet. App., and the Merit Systems Protection Board (MSPB), Pet. App., are unreported. JURISDICTION The judgment of the court of appeals was entered on September 24, 1990. The petition for a writ of certiorari was filed on October 4, 1990. The jurisdiction of this Court is invoked under 1254(1). QUESTIONS PRESENTED Whether petitioner's appeal of the employing agency's termination of his employment was within the jurisdiction of the Merit Systems Protection Board. STATEMENT 1. Petitioner was appointed by the Defense Mapping Agency to the position of Marine Information Specialist on September 11, 1989. That appointment was subject to a one year probationary period. Pet. App., MSPB Decision 1. As a condition of his appointment, petitioner was required to obtain and maintain security clearance. Ibid. On his first day of employment, petitioner signed a Statement of Understanding acknowledging that if he failed to satisfy the requirements for a security clearance he would be separated. Id. at 3. On December 29, 1989, petitioner was separated because he refused to accept the security clearance that the agency was prepared to grant him. Pet. App., MSPB Decision 2. 2. Petitioner appealed to the Merit Systems Protection Board. First, he argued that he was removed for pre-appointment reasons in violation of required agency procedures. Petitioner said that he was unaware that a security clearance was required for his position. Pet. App., MSPB Decision 2. If a clearance was required, petitioner claimed that it was a condition arising before his employment, entitling him to the procedural protection of 5 C.F.R. 315.805. /1/ Pet. App., MSPB Decision 2. Second, petitioner alleged that he was removed in retaliation for exercising his constitutional right of free speech. Id. at 3. On February 20, 1990, the MSPB dismissed petitioner's appeal for lack of jurisdiction. Pet. App., MSPB Decision 3. The MSPB held that the petitioner's termination was based on a post-appointment reason because petitioner refused to accept the proffered security clearance during the probationary period of his employment. Id. at 1-2. The MSPB also held that jurisdiction did not exist on the basis of post-appointment discrimination under 5 C.F.R. 315.806(b), /2/ because petitioner had not set forth a substantial allegation that his termination was attributable to discrimination based on either partisan political reasons or marital status. Pet. App., MSPB Decision 3. Because the MSPB lacked jurisdiction over petitioner's regulatory claims, the Board held that it lacked jurisdiction to review petitioner's claim that the Agency violated his right to free speech under the Constitution. Pet. App., MSPB Decision 3. 3. The court of appeals affirmed the MSPB's decision. It "considered each of (petitioner's) arguments, but (was) unpersuaded that any error was committed." Pet. App., Decision 1. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court. The case raises no important issues of federal law. Further review is not warranted. 1. Petitioner argues that the MSPB improperly dismissed his appeal for lack of jurisdiction. The MSPB's jurisdiction over a probationary employee's appeal is limited to that conferred by statute or regulation. /3/ See Manning v. MSPB, 742 F.2d 1424, 1426 (Fed. Cir. 1984); Mastriano v. FAA, 714 F.2d 1152, 1155 (Fed. Cir. 1983). Probationary employees have no statutory basis of appeal to the MSPB because they are not "employees" within the meaning of 5 U.S.C. 7511(a)(1). See Mastriano v. FAA, 714 F.2d at 1155; Von Deneen v. Dept. of Transportation, 33 M.S.P.R. 420, 422, aff'd, 837 F.2d 1098 (Fed. Cir. 1987). Although a probationary employee has a right of appeal to the Board under certain regulations, Von Deneen v. Dept. of Transportation, 33 M.S.P.R. at 422, that right is limited to the grounds set forth in 5 C.F.R. 315.804-315.806 and 5 C.F.R. 1201.3. By regulation, a probationary employee removed for pre-appointment reasons has the right to appeal if the termination did not comport with procedural requirements. /4/ 5 C.F.R. 315.806(c); Steele v. GSA, 6 M.S.P.R. 368, 373 (1981). A probationary employee terminated for post-appointment performance or conduct has a right to appeal only if he or she makes a nonfrivolous allegation that the termination was based on partisan political reasons or marital status. 5 C.F.R. 315.806(b); see McCloud v. Department of Navy, 33 M.S.P.R. 643, 646 (1987). /5/ a. Petitioner contends that his dismissal for refusing to accept a security clearance was for a pre-appointment condition and that the MSPB has jurisdiction to order the Agency to comply with the procedural requirements for termination set forth in 5 C.F.R. 315.805. See Pet. App., MSPB Decision 2. Because petitioner was terminated for refusing to accept a security clearance offered to him during the probationary period of his appointment, the cause of his termination arose after his appointment. See Pet. App., MSPB Decision 3. Although petitioner is correct that the requirement of a security clearance existed before his appointment, his refusal to accept the clearance and consequently his ineligibility to continue federal employment became evidence only after he accepted his appointment. In other similar cases, the MSPB has concluded that such a basis for dismissal constitutes a post-appointment reason. See Von Deneen v. Department of Transportation, 33 M.S.P.R. at 422-423 (denial of security clearance because employee's relatives lived in a communist country constituted a post-appointment reason for termination because it resulted in employee's inability to meet requirements of position during probationary period); see also Awa v. Department of Navy, 41 M.S.P.R. 318, 321-322 (1989). Since petitioner was effectively removed for a performance deficiency, he was terminated for a post-appointment reason and had no right to appeal under 5 C.F.R. 315.806(c). See Pet. App., MSPB decision 3. b. Petitioner contends that his termination resulted from political statements contained in a letter declaring his refusal to accept the agency's offered security clearance. Probationary employees terminated for post-appointment reasons must set forth a substantive allegation that a termination was the result of discrimination based on partisan political reasons or marital status in order to establish the Board's jurisdiction. 5 C.F.R. 315.806(b); see Phillips v. HUD, 44 M.S.P.R. 48, 53 (1990). The MSPB found that the petitioner had not made such an allegation, and denied jurisdiction on this basis. See Pet. App., MSPB Decision 3. Petitioners' fact-bound contention, which was rejected by both adjudicators below, does not merit further review. 2. Since petitioner did not establish the MSPB's jurisdiction over the termination action, his claim that he was discharged for exercising his constitutional rights was not reviewable by the Board, see Corbett v. Department of Health and Human Servs., 7 M.S.P.R. 431, 435 (1981) (MSPB cannot consider constitutional issues absent another basis for jurisdiction), or, for the first time on appeal, by the Federal Circuit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General FREDDI LIPSTEIN Attorneys DECEMBER 1990 /1/ 5 C.F.R. 315.805 provides that a probationary employee, who is terminated for reasons based on conditions arising before appointment, is entitled to notice of the proposed adverse action, opportunity to answer, notice of the adverse decision, and information on rights of appeal. /2/ 5 C.F.R. 315.806(b) states, "An employee may appeal under this paragraph a termination not required by statute which he or she alleges was based on partisan political reasons or marital status." /3/ The petitioner's status as a probationary employee is uncontested. The petitioner's one year probationary period began on September 11, 1989, and had not been completed by December 29, 1989, the effective date of his termination. See Pet. App., MSPB Decision 1. /4/ See note 1, supra. /5/ Not only is the MSPB's jurisdiction limited to that conferred by statute or regulation, but under applicable regulations the appealing employee has the burden (by a preponderance of the evidence) properly to invoke the jurisdiction of the MSPB. See 5 C.F.R. 1201.56(a)(2)(i); Stokes v. FAA, 761 F.2d 682, 685 (Fed. Cir. 1985) (the probationary employee bears the burden throughout of establishing jurisdiction); Burgess v. MSPB, 758 F.2d 641, 642 (Fed. Cir. 1985).