“We sua sponte decided to hear Ms. Garcia’s case en banc in order to resolve issues concerning the appropriate test for Board jurisdiction under the relevant statutes and regulation.”
“For the reasons set forth below, we hold that, under 5 U.S.C. § 7512, non-frivolous allegations do not establish the Board’s jurisdiction. We further hold that the Board’s regulation, 5 C.F.R. § 1201.56, which requires an employee to prove the Board’s jurisdiction by a preponderance of the evidence, is entitled to deference and is therefore lawful. Finally, we reaffirm our en banc holding in Cruz that in a constructive adverse action case, a claimant must prove that the action was involuntary and that the Board may not reach discrimination issues in mixed cases unless jurisdiction is established with respect to the adverse action alleged.”
