James Williams Bryant v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES WILLIAMS BRYANT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2310
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-315H-23-0143-I-1.
______________________
Decided: November 26, 2025
______________________
JAMES WILLIAMS BRYANT , Washington, DC, pro se.
ELIZABETH W. FLETCHER, Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE, KATHERINE M ICHELLE SMITH .
______________________
Before H UGHES, CUNNINGHAM, and STARK, Circuit
Judges.
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BRYANT v. MSPB 2
PER CURIAM.
After James Williams Bryant was terminated from
his motor vehicle operator position with the U.S. De-
partment of Agriculture, he filed an appeal with the
Merit Systems Protection Board. The Board dismissed
Mr. Bryant’s appeal for lack of jurisdiction. He now
seeks review of that decision. Because the Board cor-
rectly determined that Mr. Bryant had neither alleged
himself to be a statutory “employee” with appeal rights
nor alleged that he had a regulatory right to appeal his
termination, we affirm.
I
Mr. Bryant has served in various federal appoint-
ments over the past decade. Beginning in April 2016,
Mr. Bryant served as a career-conditional employee
with Arlington National Cemetery. Mr. Bryant was
terminated from this position during his probationary
period in February 2017. After a gap in service,
Mr. Bryant worked in a non-appropriated fund position
as a gardener with the U.S. Navy from September 2018
to October 2020. Mr. Bryant was then separated from
this position and transferred to work in another non-
appropriated fund position with the U.S. Air Force. In
March 2022, in anticipation of a reduction in force,
Mr. Bryant applied for other government work and was
selected to be a motor vehicle operator with the
U.S. Department of Agriculture. He began this position
with no break in service on May 22, 2022. On Decem-
ber 2, 2022, Mr. Bryant was terminated.
Mr. Bryant appealed his termination to the Board
on December 6, 2022. S.A. 9.1 On December 9, 2022,
1 S.A. refers to the Supplemental Appendix filed
by Respondent. Dkt. No. 22. Appx refers to the
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BRYANT v. MSPB 3
the administrative judge issued an Order on Jurisdic-
tion, notifying Mr. Bryant of the legal standards for
Board jurisdiction and directing Mr. Bryant to submit
evidence and argument on whether he met the defini-
tion of an “employee” with appeal rights to the Board,
as set forth in 5 U.S.C. § 7511(a)(1)(A). S.A. 10.
Mr. Bryant did not respond. The administrative judge
then issued an Order to Show Cause on December 21,
2022, again advising Mr. Bryant of his burden to sub-
mit evidence of his status as an “employee” under Ti-
tle 5, Chapter 75 of the United States Code. Appx 1–6.
On December 28, 2022, Mr. Bryant filed a response, af-
firming that he “completed one year of current contin-
uous service under an appointment other than a
temporary one limited to a year or less.” S.A. 103.
Mr. Bryant also wrote that he was “making a nonfrivo-
lous allegation that [his] termination was based on par-
tisan political reasons, marital status, or pre-
appointment conditions,” but Mr. Bryant did not sub-
mit evidence on this point. S.A. 103; see also S.A. 19.
After further orders on jurisdiction and multiple
rounds of evidentiary submissions by the parties, the
administrative judge issued an initial decision dismiss-
ing Mr. Bryant’s appeal on March 9, 2023. S.A. 9–28.
The administrative judge found Mr. Bryant had not
made non-frivolous allegations that he was an “em-
ployee” as defined in 5 U.S.C. § 7511(a)(1)(A)(i).
S.A. 13–16. In particular, the administrative judge
found that Mr. Bryant had failed to allege that he was
not subject to a probationary period. S.A. 15–16. The
administrative judge also found that Mr. Bryant had
not non-frivolously alleged that he was an employee
with appeal rights under 5 U.S.C. § 7511(a)(1)(A)(ii)
documents attached to Mr. Bryant’s informal brief.
Dkt. No. 8.
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BRYANT v. MSPB 4
because his non-appropriated service with the Navy
and Air Force did not constitute “current continuous
service” within the statute’s meaning. S.A. 16–18. Fi-
nally, the administrative judge found that Mr. Bryant
failed to non-frivolously allege that he had a regulatory
right to an appeal with the Board, since Mr. Bryant
failed to allege—beyond his pro forma statement in re-
sponse to the Board’s Order to Show Cause—that his
termination was the result of discrimination based on
political affiliation, marital status, or pre-appointment
reasons. S.A. 19–21.
Mr. Bryant then filed for review by the full Board,
which affirmed the initial decision on August 5, 2024.
S.A. 1–3. Mr. Bryant timely appealed to this court on
September 6, 2024. Dkt. No. 1. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
II
We affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c).
The Board’s jurisdiction to hear an appeal is a
question of law, which we review de novo. Rosario-Fa-
bregas v. Merit Sys. Prot. Bd., 833 F.3d 1342, 1345
(Fed. Cir. 2016). We are “bound by the Board’s jurisdic-
tional factual findings ‘unless those findings are not
supported by substantial evidence.’” Id. (quoting Bol-
ton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316
(Fed. Cir. 1998)). Substantial evidence is “such rele-
vant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” Consol. Edison Co. of
N.Y. v. NLRB, 305 U.S. 197, 217 (1938).
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BRYANT v. MSPB 5
III
The Board can only hear matters over “which it has
been given jurisdiction by law, rule, or regulation.” Go-
ines v. MSPB, 258 F.3d 1289, 1294 (Fed. Cir. 2001);
5 C.F.R. § 1201.3(a). By statute, this includes review of
adverse actions such as removals taken against “em-
ployees” as defined in 5 U.S.C. § 7511(a)(1)(A). See
5 U.S.C. § 7701. Under that section, an “employee” is
“an individual in the competitive service—(i) who is not
serving a probationary or trial period under an initial
appointment; or (ii) who has completed 1 year of cur-
rent continuous service under other than a temporary
appointment limited to 1 year or less.” 5 U.S.C.
§ 7511(a)(1)(A). At the time of Mr. Bryant’s termina-
tion and appeal, the Board could also review termina-
tions of probationary employment, but the Board’s
review was limited to determinations “that the termi-
nation was motivated by partisan political reasons or
marital status, and/or if the termination was based on
a pre-appointment reason, whether the agency failed to
take required procedures.” 5 C.F.R. § 1201.3(a)(3); see
also 5 C.F.R. §§ 315.805–315.806.
To show entitlement to a Board hearing on one of
the above grounds, a claimant must first make non-
frivolous claims—that is, claims that are “material,”
“plausible,” and “more than conclusory,” 5 C.F.R.
§ 1201.4(s)—of the Board’s jurisdiction. See Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir.
2006). At the hearing, the claimant must prove juris-
diction by a preponderance of the evidence. See id.
IV
A
We first turn to the Board’s conclusion that
Mr. Bryant failed to non-frivolously allege his status as
an “employee” under 5 U.S.C. § 7511(a)(1)(A)(i). On
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BRYANT v. MSPB 6
appeal, Mr. Bryant argues that the administrative
judge failed to consider “the fact that [he] was em-
ployed as a Federal Government employee over 1 year
at the Arlington [National] Cemetery,” as well as the
“[i]nterchange agreement which states [he] was a [non-
appropriated fund] employee serving over 1 year in the
DOD agency.” Pet. Br. 2. These arguments, however,
were already addressed and correctly dismissed by the
Board.
Several determinations, each supported by sub-
stantial evidence, underpinned the Board’s conclusion
that Mr. Bryant had not shown entitlement to a Board
appeal under 5 U.S.C. § 7511(a)(1)(A)(i). First, the
Board found, based on evidence in the administrative
record, that he had not alleged the completion of a prior
probationary term with Arlington National Cemetery
or any prior federal appointment. S.A. 14–15. Second,
the Board rejected Mr. Bryant’s arguments related to
his proffered interchange agreement because this
agreement, by its own terms, only applies to employees
who have completed three years of service in a “perma-
nent [non-appropriated fund] appointment.” S.A. 13–
14; S.A. 41, ¶ 5. Because Mr. Bryant’s previous non-ap-
propriated fund appointments were time-limited and
not permanent, he was not excused from a probation-
ary period when starting with the agency. S.A. 13–14;
see also S.A. 77–79, 81, 83–84.
Finally, the Board correctly determined that
Mr. Bryant was not able to “tack” any of his prior fed-
eral service to satisfy his probationary period under
5 C.F.R. § 315.802(b). S.A. 15. That provision allows for
prior civilian service (including non-appropriated fund
service) to count toward probation completion, but only
if the service is with the same agency and line of work.
5 C.F.R. § 315.802(b). The Board correctly concluded
that Mr. Bryant’s work as an Air Force gardener and a
motor vehicle operator with the Department of
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BRYANT v. MSPB 7
Agriculture involve separate agencies and lines of
work. S.A. 15.
The record evidence showed that Mr. Bryant was
subject to a probationary period upon starting with the
agency and that he was terminated during this period.
We therefore find that the Board did not err in deter-
mining Mr. Bryant failed to non-frivolously allege his
status as an “employee” under 5 U.S.C.
§ 7511(a)(1)(A)(i).
B
Mr. Bryant also argues on appeal that the agency
did not afford him sufficient access to records, includ-
ing Form SF-50s, that he needed to prove his case.
Pet. Br. 2–3. The administrative record reflects, how-
ever, that the agency submitted several SF-50s for
Mr. Bryant dating back to 2012, which it served on
Mr. Bryant. See S.A. 66–81, 99. The record also reflects
that the agency requested Mr. Bryant’s official person-
nel folder from the Department of Defense, which it
also served on Mr. Bryant. S.A. 52–55. It is unclear
what other records Mr. Bryant seeks to prove his case
or how Mr. Bryant expects such records to contradict
the conclusions reached by the Board. We therefore re-
ject Mr. Bryant’s argument that the SF-50 forms en-
tered into the record are insufficient.
Mr. Bryant also appears to argue that the Board
erred by not allowing him timely access to his records.
Pet Br. 3. But we have consistently affirmed that
“[p]rocedural matters regarding discovery and eviden-
tiary issues fall within the sound discretion of the
Board and its officials.” Rueter v. Dep’t of Com.,
63 F.4th 1357, 1371 (Fed. Cir. 2023) (cleaned up). We
will not address these matters on appeal unless the pe-
titioner shows an abuse of discretion causing prejudice
that “could have affected the outcome of the case.” Id.
(cleaned up). Here, Mr. Bryant’s allegations that he
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BRYANT v. MSPB 8
lacked sufficient time to gather materials for a prelim-
inary status conference do not establish an abuse of
discretion. See Pet Br. 3.
V
We have considered Mr. Bryant’s other arguments
and find them unpersuasive. For these reasons, we af-
firm the Board’s dismissal of Mr. Bryant’s appeal.
AFFIRMED
COSTS
No costs.
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