                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NATHAN BRYANT, SR,                              DOCKET NUMBER
                 Appellant,                          DC-315H-14-0316-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: August 15, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                        3

     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.
                                                                                            4

     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).
                                                                                  5

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.
                                                                            6

      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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
