101 F3d 714 Durst-Lee v. Merit Systems Protection Board

101 F.3d 714

Shirley DURST-LEE, Petitioner,

No. 96-3337.

United States Court of Appeals, Federal Circuit.

Nov. 12, 1996.

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before MAYER, LOURIE and RADER, Circuit Judges.


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Shirley Durst-Lee petitions for review of the decision of the Merit Systems Protection Board, No. CH315H960504-I-1 (June 11, 1996), dismissing, for lack of jurisdiction, the appeal of her termination as a Child Development Specialist with the Department of the Army. Durst-Lee did not file a petition for the board's review of the initial decision, which became final on July 16, 1996. We affirm.


Durst-Lee challenges the board's determination that she neither completed her probationary period nor non-frivolously alleged either partisan political or marital status discrimination. In reviewing a board decision we apply a narrow, statutory standard. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). We must affirm a board decision unless a petitioner demonstrates that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). Durst-Lee has not met this burden. Accordingly, as a probationary employee, she is not entitled to appeal her removal.