NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

BYRON T. HURST, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2010-3044 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in CH3443090469-I-1. 

___________________________ 

Decided: June 11, 2010 

___________________________ 

BYRON T. HURST, of Dayton, Ohio, pro se. 

SARA B. REARDEN, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With her on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 
HURST v. MSPB 2

Before BRYSON, GAJARSA, and PROST, Circuit Judges. 

PER CURIAM. 

DECISION

Byron T. Hurst petitions for review of the final decision of the Merit Systems Protection Board dismissing his 

appeal for lack of jurisdiction. We affirm. 

BACKGROUND

Mr. Hurst was employed as a Civil Engineering Technician with the Department of Veterans Affairs (“DVA”) 

pursuant to a series of temporary appointments that 

ended on September 26, 2008. None of the appointments 

was for more than a year. Mr. Hurst applied for and was 

interviewed for a permanent position in 2008, but he was 

not selected for the appointment. Shortly thereafter, 

when Mr. Hurst’s temporary appointment was not renewed, his employment was terminated. 

On March 6, 2009, Mr. Hurst filed an appeal with the 

Merit Systems Protection Board, claiming that the DVA 

had “failed to follow or apply the required procedures in 

the area of consideration to fill announcement 08-117.” 

The administrative judge issued an acknowledgment 

order on April 1, 2009, informing Mr. Hurst that his 

appeal had been received, and further advising him that 

the Board may not have jurisdiction over his appeal. 

After receiving no response from Mr. Hurst, the administrative judge issued an initial decision dismissing for lack 

of jurisdiction on the ground that Mr. Hurst had served 

under a series of temporary appointments each limited to 

one year or less, and that such individuals have no right 

of appeal to the Board. 
3 HURST v. MSPB

On June 30, 2009, Mr. Hurst filed a petition for review with the Board, alleging that the DVA had “violated 

the Veteran Rights and benefits under Law, Regulation, 

Polic[i]es, and Procedures”; that the agency had “violated 

the Veteran Preference Rig[ht]s”; and that the agency had 

violated 5 C.F.R. § 316.401(b), which provides that the 

supervisor of each temporary appointment position must 

certify that the employment need is truly temporary. Mr. 

Hurst also indicated that he served under a temporary 

appointment for a period of 1 year, 3 months, and 27 days. 

The Board denied the petition for review on September 

25, 2009. 

DISCUSSION

On appeal, Mr. Hurst alleges that the Board misapplied 5 U.S.C. § 7511(a)(1)(A)(ii), and that there was no 

documentation to back the Board’s decisions. 

Section 7511(a)(1)(A)(ii) defines “employee” to include 

any individual in the competitive service “who has completed 1 year of current continuous service under other 

than a temporary appointment limited to 1 year or less.” 

That definition specifically excludes individuals, such as 

Mr. Hurst, who have served only in temporary appointments having terms of 1 year or less. The fact that Mr. 

Hurst served for a cumulative period of 1 year, 3 months, 

and 27 days, through a series of renewed appointments, 

does not help Mr. Hurst, because each renewal of his 

appointment was for a term of less than 1 year. See

Vaught v. Dep’t of the Air Force, 56 M.S.P.R. 554, 557 

(1993) (appellant whose appointments were all limited to 

one year or less is not an “employee” whose appeal falls 

within the Board’s jurisdiction, even when the “appellant’s combined service under a series of temporary 

appointments is greater than a year in duration”). 
HURST v. MSPB 4

Moreover, it is clear that the administrative judge reviewed appropriate employment forms in reaching her 

initial decision. The administrative judge noted that Mr. 

Hurst “served under a series of temporary appointments 

beginning on May 29, 2007, and extended four times, to 

terminate on September 30, 2008.” That statement is 

consistent with the employment forms included in the 

record on appeal to this court. 

Mr. Hurst also requests relief on the grounds originally stated in his complaint before the Board, alleging 

that the Board failed to consider his case folder. The 

reason the Board did not review the merits of Mr. Hurst’s 

claims was because it found that it lacked jurisdiction to 

hear his appeal. The Board was correct in declining to 

decide the merits of a case outside its jurisdiction. This 

court similarly lacks jurisdiction to consider those claims. 

For the reasons given by the Board and reiterated above, 

we uphold the Board’s order dismissing Mr. Hurst’s 

appeal. 

AFFIRMED