       NOTE: This disposition is nonprecedential.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 exhib-
ited substantial knowledge of information security prac-
tices 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 profes-
sional 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 employ-
ment 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 pursu-
ant 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 non-
selection, 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 re-
sponses 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 mo-
tion 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 appli-
cable 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 evi-
dence. 5 C.F.R. § 1201.56(a)(2) (2010).

    Gregory maintains that his non-selection for employ-
ment 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 suit-
ability 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 dura-
    tion that suggests that the applicant or appointee
    would be prevented from performing the duties of
    the position in question, or would constitute a di-
    rect 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 rein-
statement 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 “suit-
ability” 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 eligi-
bility 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 employ-
ment 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 condi-
tioned on satisfactory results of a pending security check.


    cant or appointee or others; (6) Illegal use of nar-
    cotics, drugs, or other controlled substances with-
    out evidence of substantial rehabilitation;
    (7) Knowing and willful engagement in acts or ac-
    tivities designed to overthrow the U.S. Govern-
    ment 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 contrac-
tual relationship arise. Moreover, even if Gregory had
been hired, federal employment follows a system of ap-
pointment that is, absent an explicit statutory exception,
governed by statute and regulation rather than contrac-
tual 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 jurisdic-
tional arguments and find them unpersuasive. Accord-
ingly, 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.
