status and that the allegations of handicap discrimination did not provide an independent basis for jurisdiction. There was no appeal to the full Board, and the decision became final on February 10, 1986.
The Court agrees with defendant's contention that it lacks jurisdiction to review the administrative decision to terminate the plaintiff due to plaintiff's probationary status. The policy of denying probationary employees the right to challenge such terminations is based on the premise that the probationary or trial period is an extension of the examining process to determine an employee's ability to actually perform the duties of the position. "It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period." S. Rep. No. 969, 95th Cong., 2d Sess. 45 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2767. Because Congress could have permitted probationers to challenge removals, but declined to do so, it would be incongruous to conclude that a probationer has an implied private right of action to seek judicial review of his or her dismissal. E.g., INS v. FLRA, 709 F.2d 724, 728-29 (D.C. Cir. 1983).
Whether plaintiff has a cause of action under Executive Order 5396 and the Back Pay Act is a closer question. The Back Pay Act in and of itself does not provide this Court with jurisdiction over plaintiff's claim, but only grants such relief where there has been an unjustified or unwarranted personnel action under applicable law, rule, regulation or collective bargaining agreement. Section 5596(b)(1). Thus, absent a particular allegation of violation of an applicable law or regulation, a plaintiff may not use the Back Pay Act to assert broader harms. United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983). As Connolly states, the "Back Pay Act is merely derivative in application; it is not itself a jurisdictional statute." Id.
Here, the plaintiff contends that Executive Order 5396 makes her termination an unjustified personnel action under applicable law. Thus, the Court must analyze the background of the Executive Order in question to determine if back pay was intended as a remedy for its violation. Executive Order 5396 states:
With respect to medical treatment of disabled veterans who are employed in the executive civil service of the United States, it is hereby ordered that, upon the presentation of an official statement from duly constituted medical authority that medical treatment is required, such annual or sick leave as may be permitted by law and such leave without pay as may be necessary shall be granted by the proper supervisory officer to a disabled veteran in order that the veteran may receive such treatment, all without penalty in his efficiency rating.