NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

HERBERT E. GREGORY, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2011-3178 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. DC0731110018-I-1. 

____________________________ 

Decided: March 12, 2012 

____________________________ 

HERBERT E. GREGORY, of Alexandria, Virginia, pro se. 

CALVIN MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. Of counsel on the brief were JAMES 

M. EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel, of Washington, DC. 

__________________________ 
GREGORY v. MSPB 2

Before NEWMAN, LOURIE, and PROST, Circuit Judges. 

PER CURIAM. 

Petitioner Herbert E. Gregory petitions for review of a 

final decision by the Merit Systems Protection Board 

(“Board”) dismissing his appeal from a failure of the 

General Services Administration (“GSA”) to hire him for a 

job vacancy. Gregory v. Gen. Servs. Admin., No. DC-0731-

11-0018-I-1 (M.S.P.B. Nov. 12, 2010) (“Initial Decision”); 

(M.S.P.B. May 26, 2011) (“Final Order”). We affirm. 

BACKGROUND

Gregory responded to a vacancy announcement for a 

position as an information technology specialist at the 

GSA in early 2010. The selecting official interviewed 

Gregory on June 11, 2010, during which Gregory exhibited substantial knowledge of information security practices but also revealed that he had been asked to leave his 

last position following a disagreement with a client. The 

hiring official conducted subsequent reference checks, 

noting some difficulty in obtaining and contacting professional references. On August 11, 2011, a GSA human 

resources specialist informed Gregory in writing that he 

had been selected for the position, with the following 

caveat: “This offer is tentative pending security approval.” 

Gregory indicated his acceptance of the GSA’s tentative 

offer the same day. 

Through the ensuing security check, GSA officials 

learned that Gregory had resigned or had been released 

from employment on four occasions in the preceding five 

years. At that point, the selecting official decided against 

proceeding further, and the GSA informed Gregory on 

September 10, 2010 that his tentative offer of employment had been rescinded. In part, the GSA’s notice stated 
3 GREGORY v. MSPB

that Gregory “no longer [met] the suitability requirements 

for the Information Technology Public Trust position.” As 

a result, Gregory’s tentative selection was never finalized, 

he was never appointed to a government position, and he 

never entered on duty. 

Gregory appealed to the Board to challenge the GSA’s 

hiring decision, alleging that the agency had breached a 

contract and subjected him to a suitability action pursuant to 5 C.F.R. pt. 731. The Administrative Judge (“AJ”), 

noting that unsuccessful candidates for civil service 

employment ordinarily have no right to appeal their nonselection, issued an acknowledgement order seeking 

evidence and argument sufficient to support the Board’s 

jurisdiction over Gregory’s appeal. Gregory v. Gen. Servs. 

Admin., No. DC-0731-11-0018-I-1 (M.S.P.B. Oct. 6, 2010). 

In response, Gregory filed numerous motions and responses arguing his contract and suitability theories, and 

the GSA filed a motion to dismiss for lack of jurisdiction. 

In an initial decision, the AJ granted the GSA’s motion to dismiss. The AJ found that Gregory “did not 

provide, and the record does not contain, any evidence 

that he was subjected to a suitability determination of 

any kind.” Initial Decision at 2. Regarding Gregory’s 

contractual arguments, the AJ held that the withdrawal 

of a tentative offer of employment did not constitute an 

appealable action. Id. at 3. The Board subsequently 

denied Gregory’s petition for review, holding that the AJ’s 

decision was supported by the record evidence and applicable law. Final Order at 2–3. Gregory appeals. 

DISCUSSION

Whether the Board has jurisdiction to adjudicate an 

appeal is a question of law that we review de novo, Stoy-
GREGORY v. MSPB 4

anov v. Dep’t of the Navy, 474 F.3d 1377, 1379 (Fed. Cir. 

2007), but we must accept the factual findings underlying 

the Board’s jurisdictional determination unless they are 

not supported by substantial evidence. Bolton v. Merit 

Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). As 

the petitioner, Gregory bears the burden of establishing 

the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2010). 

Gregory maintains that his non-selection for employment at the GSA amounted to a suitability action, which 

would provide a right of appeal before the Board pursuant 

to 5 C.F.R. § 731.501(a). His position is based primarily 

on the GSA’s statement that he no longer met “the suitability requirements” when it declined to complete his 

appointment. 

Suitability determinations examine “suitability” for 

covered federal employment—specifically, whether “a 

person’s character or conduct . . . may have an impact on 

the integrity or efficiency of the service.” 5 C.F.R. 

§ 731.101. If an individual is deemed unsuitable for 

service based on one or more of the factors enumerated in 

5 C.F.R. § 731.202(b),1 the acting agency may take a 

 1 Section 731.202(b) provides an exclusive list of 

“[s]pecific factors” that can give rise to a suitability action: 

(1) Misconduct or negligence in employment; 

(2) Criminal or dishonest conduct; (3) Material, 

intentional false statement, or deception or fraud 

in examination or appointment; (4) Refusal to 

furnish testimony as required by § 5.4 of this 

chapter; (5) Alcohol abuse, without evidence of 

substantial rehabilitation, of a nature and duration that suggests that the applicant or appointee 

would be prevented from performing the duties of 

the position in question, or would constitute a direct threat to the property or safety of the appli-
5 GREGORY v. MSPB

suitability action, which can include removal, debarment, 

cancellation of eligibility, and/or cancellation of reinstatement eligibility. 5 C.F.R. § 731.203(a). Since June 

16, 2008, however, “[a] non-selection, or cancellation of 

eligibility for a specific position . . . is not a suitability 

action even if it is based on reasons set forth in 

§ 731.202.” 5 C.F.R. § 731.203(b). 

In this instance, the GSA’s hiring decision cannot be 

considered an appealable suitability action under the 

clear terms of § 731.203(b), and its use of the word “suitability” in providing notice to Gregory does not alter the 

substance of the GSA’s actions. As the Board correctly 

noted, there is no evidence that Gregory was removed or 

debarred from any position, that his reinstatement eligibility was cancelled, or that his eligibility was cancelled 

for any position other than the specific position he sought 

with the GSA. In short, the GSA’s decision amounted to 

nothing more than a non-selection for employment, which 

is generally not appealable to the Board. See Prewitt v. 

Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). 

Gregory also contends that his acceptance of the 

GSA’s tentative offer resulted in an enforceable employment contract, which the agency then breached upon 

rescinding that offer. First, the GSA’s tentative offer was 

just that—a tentative offer that, on its face, was conditioned on satisfactory results of a pending security check. 

 

cant or appointee or others; (6) Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation; 

(7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; and (8) Any statutory or regulatory 

bar which prevents the lawful employment of the 

person involved in the position in question. 
GREGORY v. MSPB 6

When those results proved unsatisfactory, the offer was 

withdrawn, Gregory was never appointed to the position, 

and he never entered on duty. At no point did a contractual relationship arise. Moreover, even if Gregory had 

been hired, federal employment follows a system of appointment that is, absent an explicit statutory exception, 

governed by statute and regulation rather than contractual obligation. See Chu v. United States, 773 F.2d 1226, 

1229 (Fed. Cir. 1985). We therefore reject Gregory’s 

breach of contract theory. 

We have considered Gregory’s remaining jurisdictional arguments and find them unpersuasive. Accordingly, we hold that Gregory failed to establish the Board’s 

authority to hear his appeal, and we therefore decline to 

consider his arguments on the merits of the GSA’s hiring 

decision. The Board’s decision to dismiss for lack of 

jurisdiction is 

AFFIRMED 

COSTS

 No costs.