UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATHAN BRYANT, SR,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-315H-14-0316-I-1

DATE: August 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Nathan Bryant, Sr., Washington, D.C., pro se.

Steven J. Weiss, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed the appeal of his probationary termination for lack of jurisdiction. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the judge’s rulings during either the course of the 

appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. See

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, and based on the 

following points and authorities, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 Effective January 14, 2013, the agency appointed the appellant to a 

competitive service position as a Maintenance Mechanic, a career-conditional 

appointment subject to a 1-year probationary period. Initial Appeal File (IAF), 

Tab 4 at 12-14. On January 9, 2014, prior to the completion of the 1-year 

probationary period, the agency terminated the appellant based on 

post-appointment conduct and performance deficiencies. IAF, Tab 1 at 7-8, Tab 4 

at 11. 

¶3 The appellant filed a timely appeal challenging his probationary 

termination. IAF, Tab 1. The administrative judge issued an order to show cause 

that apprised the appellant of his burden to establish the Board’s jurisdiction over 

his appeal, including notice of the regulatory right to appeal available for 

probationary employees and the requirements for meeting the definition of an 

“employee” with appeal rights pursuant to 5 U.S.C. chapter 75. IAF, Tab 3. The 

appellant did not respond to the show cause order. See IAF, Tab 5, Initial 
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Decision (ID) at 2. The agency responded to the show cause order, arguing that 

the appeal should be dismissed for lack of jurisdiction. IAF, Tab 4.

¶4 On April 11, 2014, the administrative judge issued an initial decision, 

without holding the appellant’s requested hearing, dismissing the appeal for lack 

of jurisdiction. ID at 2-3. The administrative judge found that: (1) the appellant 

failed to allege a nonfrivolous allegation that he was an “employee” with 

statutory Board appeal rights; and (2) he had not raised any claim implicating 

partisan political reasons, marital status, or conditions arising prior to his 

appointment as considerations in the agency’s decision to terminate his 

employment. Id. 

¶5 On May 6, 2014, the appellant filed a new appeal form, which has been 

accepted as a timely petition for review. 2 Petition for Review (PFR) File, Tab 1. 

The agency responded in opposition to the appellant’s petition. PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Generally, the Board lacks jurisdiction over a probationary employee’s 

appeal from a termination during the probationary period. Hurston v. Department 

of the Army, 113 M.S.P.R. 34, ¶ 8 (2010). To establish Board jurisdiction under 

5 U.S.C. chapter 75, an individual must, among other things, show that he 

satisfies one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.

§ 7513(d); see Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). 

For an individual in the competitive service, like the appellant, this means that he 

must either: (1) not be serving a probationary or trial period under an initial

appointment, or (2) have completed 1 year of current continuous service under 

other than a temporary appointment limited to 1 year or less. 5 U.S.C. 

§ 7511(a)(1)(A). Id. Individuals in the competitive service who do not satisfy 

 2 The appellant filed the new appeal form with the Board’s Washington Regional 

Office. PFR File, Tab 1. That office forwarded the submission to the Clerk of the 

Board. Id. 
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either definition may nevertheless have the right to appeal a termination to the 

Board where: (1) the employee was discriminated against based on his marital 

status; (2) the agency action was based on partisan political reasons; or (3) the 

agency action was based (in whole or in part) on pre-appointment reasons and the 

agency did not follow the procedures of 5 C.F.R. § 315.805. 5 C.F.R.

§ 315.806(a)-(c). Absent nonfrivolous allegations by an appellant, there is no 

right to a hearing on the threshold issue of jurisdiction. See Campion v. Merit 

Systems Protection Board, 326 F.3d 1210, 1215 (Fed. Cir. 2003).

¶7 On review, the appellant does not challenge the administrative judge’s 

determination that he was not an “employee” within the meaning of 5 U.S.C.

§ 7511(a)(1) or that the termination was not based on partisan political reasons, 

marital status discrimination, or conditions arising before appointment. PFR File, 

Tab 1; see ID at 3. Rather, the appellant reiterates the arguments on the merits of 

his probationary termination. Id. Specifically, he asserts that: (1) his 

supervisor’s allegations regarding his conduct and performance were “false”; (2)

the agency did not provide documentation in support of his termination; (3) he 

did not receive a hearing; (4) his supervisor “strategically terminated” his 

employment 6 days prior to completing his probationary term; (5) he was 

subjected to a hostile work environment; and (6) he was forced to work in pain 

and his supervisor discouraged him from filing with the Office of Workers’ 

Compensation Program. Id. 

¶8 As the administrative judge correctly found, the appellant’s arguments do 

not constitute a nonfrivolous allegation that he was an “employee” under 5 U.S.C. 

§ 7511(a)(1) or that his termination involved partisan political reasons, marital 

status discrimination, or conditions arising prior to his appointment. 3 PFR File, 

 3 The appellant alleges, in part, that he was subjected to a hostile work environment and 

discriminatory harassment by his supervisor. PFR File, Tab 1. However, in the 

absence of an otherwise appealable action, the Board lacks jurisdiction to review these 

allegations. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 

F.2d 867, 871-73 (D.C. Cir. 1982).
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Tab 1; see ID at 3. Accordingly, the administrative judge properly found that the 

appellant failed to raise a nonfrivolous allegation of jurisdiction. We discern no 

reason to disturb the administrative judge’s determination that the appellant’s 

appeal is not within the Board’s jurisdiction.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.
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If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board