affirming the Board’s dismissal for lack of jurisdiction because “OPM played no part in the ineligible rating given to [the] petitioner” and thus “ OPM had not applied any employment practice to [the] petitioner”
How later courts described this case
- affirming the Board’s dismissal for lack of jurisdiction because “OPM played no part in the ineligible rating given to [the] petitioner” and thus “ OPM had not applied any employment practice to [the] petitioner”
- “Prohibited personnel practices are cognizable by the Board only when they motivate an otherwise appealable personnel action.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESUS CLEMENTE, DOCKET NUMBER
Appellant, SF-3443-20-0600-I-1
v.
DEPARTMENT OF JUSTICE, DATE: June 25, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Jesus Clemente , San Diego, California, pro se.
Gregory Patrick , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review. We AFFIRM
the initial decision’s findings that the Board lacks jurisdiction over the matter as
an adverse action, employment practices, or suitability action appeal. We FIND
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
that his prohibited personnel practices claims are not an independent source of
jurisdiction. However, we REMAND the case to the Western Regional Office for
further adjudication of his claims pursuant to the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified at
38 U.S.C. §§ 4301-4333) and the Veterans Employment Opportunity Act of 1998
(VEOA).
BACKGROUND
The appellant is an Immigration Judge in San Diego, California. Initial
Appeal File (IAF), Tab 1 at 1. He applied for an Appellate Immigration Judge
position, and the agency interviewed him but later notified him that he was not
selected. Id. at 3-5. He appealed his nonselection, asserting that he was not
selected for the position because “I am not a known Republican or Conservative
and not involved in cronyism” and the agency discriminated against him “because
of political reasons and cronyism.” Id. at 5. In an acknowledgment order, the
administrative judge notified the appellant that the Board generally lacks
jurisdiction over nonselection claims, and she instructed him how to meet his
jurisdictional burden. IAF, Tab 2. The appellant filed a response and addendum
asserting that the Board has jurisdiction over his nonselection claim because the
agency, through the Office of Personnel Management (OPM), violated basic
requirements of 5 C.F.R. § 300.103(a) and because the agency engaged in a
prohibited personnel practice under 5 U.S.C. § 2302(b)(1) by discriminating
against him based on his race, national origin, color, age, disability, and political
affiliation. IAF, Tabs 4-5. The agency filed a response, and the appellant filed a
reply. IAF, Tabs 6-7. After considering the submissions, the administrative
judge dismissed the appeal for lack of jurisdiction, finding that the appellant
failed to nonfrivolously allege jurisdiction over his nonselection claim. IAF,
Tab 19, Initial Decision (ID) at 5. The appellant has filed a petition for review,
and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3.
3
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally lacks
jurisdiction to consider an appeal regarding a nonselection for a position.
Nakshin v. Department of Justice, 98 M.S.P.R. 524, ¶ 9 (2005). Claims of
unlawful conduct in the selection process ordinarily must be brought before other
forums. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir.
1998).
On review, the appellant asserts that the administrative judge erred when
she found that the appellant failed to nonfrivolously allege jurisdiction over his
nonselection. Specifically, he argues that the Board has jurisdiction over his
nonselection because (1) he was subjected to a suitability action, (2) he was
subjected to an appealable unlawful employment practice pursuant to 5 C.F.R.
§ 300.103 and 5 C.F.R. § 300.104(a), and (3) he was subjected to a prohibited
personnel practice pursuant to 5 U.S.C. § 2302(b)(1) when the agency
discriminated against him based on his race, national origin, color, age, disability,
and political affiliation. PFR File, Tab 1. Additionally, it appears that the
appellant is seeking to assert a USERRA and/or VEOA claim. Id. at 5.
We affirm the administrative judge’s finding that the appellant failed to
nonfrivolously allege that he was subjected to a suitability determination. ID at
4-5. The administrative judge issued an acknowledgment order explaining the
appellant’s burden to nonfrivolously allege jurisdiction if he believed he was
subjected to a suitability determination. IAF, Tab 2 at 3-4. The appellant
submitted a response and addendum totaling over 300 pages, but he did not allege
that he was subjected to a cancellation of eligibility, a removal, a cancellation of
reinstatement eligibility, or a debarment. Id.; 5 C.F.R. § 731.203(a). In his
petition for review, the appellant makes a conclusory allegation that the
administrative judge “incorrectly concluded OPM did not engage in a suitability
4
determination,” but he did not allege any facts in support of his assertion. PFR
File, Tab 1 at 5. The appellant also states on review that the administrative judge
incorrectly set forth the legal standard. We disagree and find that the
administrative judge correctly set forth the standard for an appealable suitability
action.
We likewise affirm the administrative judge’s finding that the appellant
failed to nonfrivolously allege that an employment practice applied to him by
OPM violated a basic requirement in 5 C.F.R. § 300.103. ID at 4-5. The Board
has jurisdiction over an employment practice claim under 5 C.F.R. § 300.104(a)
when the following two conditions are met: (1) the appeal must concern an
employment practice that OPM is involved in administering; and (2) the appellant
must make a nonfrivolous allegation that the employment practice violated one of
the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶ 15,
appeal dismissed, 446 F. App’x 293 (Fed. Cir. 2011). “An individual agency
action or decision that is not made pursuant to or as part of a rule or practice of
some kind does not qualify as an ‘employment practice.’” Prewitt, 133 F.3d at
887; see also Dowd v. Office of Personnel Management , 745 F.2d 650, 651 (Fed.
Cir. 1984) (affirming the Board’s dismissal for lack of jurisdiction because “OPM
played no part in the ineligible rating given to [the] petitioner” and thus “ OPM
had not applied any employment practice to [the] petitioner”) (emphasis added).
On review, the appellant alleges that the agency asked interview questions that
were unrelated to the basic job duties and responsibilities of the position and that
the questions were “designed specifically to find the [a]ppellant unqualified for
the position.” PFR File, Tab 1 at 5-6. He further alleges, “the agency failed to
provide in the announcement ‘the factors that are important in evaluating
candidates,’ as required under 5 C.F.R. § 300.103(a)(3),” though he later
acknowledged that the announcement did contain the factors important in
evaluating candidates, and he argues instead that the agency “unfairly and
5
maliciously shifted the narrative during the interview” to ask questions that he
contends are unrelated to the basic responsibilities of the position. PFR File,
Tab 1 at 6-7 (emphasis added). The appellant has failed to identify OPM’s
involvement, if any, in the development of interview questions. The fact that
OPM may have been involved in posting the job announcement and forwarding
qualified candidates to the agency does not transform the appellant’s complaint
about an individual agency action or decision into an appealable employment
practice. E.g., IAF, Tab 7 at 8; PFR File, Tab 1 at 5. We therefore agree with the
administrative judge that the appellant has failed to nonfrivolously allege an
appealable employment practice.
The appellant also argues that the administrative judge failed to consider
his claim that the Board has jurisdiction over his allegation of a prohibited
personnel action pursuant to 5 U.S.C. § 2302. Specifically, he alleges that the
agency discriminated against him based on his race, national origin, color, age,
disability, and political affiliation. PFR File, Tab 1 at 7-8. The Board can
consider claims of prohibited personnel practices in conjunction with an
otherwise appealable matter or if the claim is brought as an independent right of
action under 5 U.S.C. § 1221. See 5 U.S.C. § 2302(b)(8); Brodt v. Merit Systems
Protection Board, 11 F.3d 1060, 1061 (Fed. Cir. 1993) (“Prohibited personnel
practices are cognizable by the Board only when they motivate an otherwise
appealable personnel action.”). However, section 2302(b) does not provide an
independent ground for Board jurisdiction. Fair v. Department of the Navy,
66 M.S.P.R. 485, 488 (1995). Because the appellant’s allegation of a prohibited
personnel practice was not coupled with an otherwise appealable personnel action
or brought as an independent right of action under section 1221, the Board lacks
jurisdiction over the appeal.
In his petition for review, the appellant states that he is “a 90% disabled
veteran, part of the ‘uniform service,’ and entitled to ‘veterans’ preference.’”
PFR File, Tab 1 at 5. Although the appellant did not specifically invoke
6
USERRA or VEOA by name, his filings before the administrative judge
referenced the agency’s “knowledge of his military and disability status,”
alleged he was denied the position “due to his military standing,” and referenced
his veterans’ preference. IAF, Tab 7 at 4-5 (emphasis in original). The
administrative judge’s acknowledgment order did not provide explicit notice on
how the appellant could establish jurisdiction over his claim as a USERRA
appeal, and the issue is not addressed in the initial decision. Under the
circumstances, we find it appropriate to remand for consideration of the potential
USERRA claim. On remand, the administrative judge shall notify the appellant
of the USERRA burdens and methods of proof.
The appellant may also have attempted to raise a claim under VEOA.
Although his actual allegations do not suggest that the agency failed to observe
veterans’ preference laws and he does not allege that he timely filed a complaint
with the Secretary of Labor, as required under 5 U.S.C. § 3330a, we note that the
appellant checked the box on the initial appeal form noting he was entitled to
veterans’ preference and his submissions have made reference to his entitlement
to veterans’ preference. IAF, Tab 1, 4, Tab 7 at 5; PFR File, Tab 1 at 5. VEOA
claims must be liberally construed. Loggins v. U.S. Postal Service, 112 M.S.P.R.
471, ¶ 14 (2009). We likewise remand this appeal for adjudication of any VEOA
claim that the appellant might have raised. On remand, the administrative judge
shall provide the appellant with a complete statement of the jurisdictional
elements for a VEOA claim.
7
ORDER
Accordingly, we remand this case to the Western Regional Office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.