Opinion

Jessica Manfre v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 3, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.8%

finding that although an agency determined that an applicant was unsuitable for a criminal investigator position due to past misconduct, the agency’s “decision to rescind its tentative offer of employment for that position was not a ‘suitability action’ that could be appealed 4 to the [B]oard”

How later courts described this case

finding that although an agency determined that an applicant was unsuitable for a criminal investigator position due to past misconduct, the agency’s “decision to rescind its tentative offer of employment for that position was not a ‘suitability action’ that could be appealed 4 to the [B]oard”
finding that an appellant was not removed when the agency rescinded his job offer before he entered on duty

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JESSICA MARIE MANFRE, DOCKET NUMBER

Appellant, DC-1221-25-0920-W-1

DEPARTMENT OF VETERANS DATE: June 3, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jessica Marie Manfre , Camden, North Carolina, pro se.

Diane Tardiff , Bedford, Massachusetts, for the agency.

Raminder Madan , Esquire, Winston-Salem, North Carolina, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal of the recission of a job offer for lack of jurisdiction. On

review, the appellant argues that the agency’s recission of her job offer was based

on her personal views, constituting an appealable adverse suitability action.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

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. 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, 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. Except as expressly MODIFIED to address the appellant’s

suitability action arguments made for the first time on review, we AFFIRM the

initial decision.

For the first time on review, the appellant argues that the agency’s

determination that she no longer met the conditions of employment based on her

personal views was effectively a suitability determination, and, as such, the

rescission of the job offer is an appealable suitability action. Petition for Review

(PFR) File, Tab 1 at 5. She has submitted evidence on review supporting her new

claim. Id. at 7-20. The appellant did not make this argument nor submit this

evidence below, but we have considered it to the extent that it informs the

question of the Board’s jurisdiction over her appeal. DeGrella v. Department of

the Air Force, 2022 MSPB 44, ¶ 16 n.5 (finding that it is appropriate to consider

new arguments relevant to jurisdiction on review because the issue of the Board’s

jurisdiction may be raised at any time); Pirkkala v. Department of Justice,

123 M.S.P.R. 288, ¶ 5 (2016) (reaching the same conclusion regarding new

evidence submitted for the first time on review).

The administrative judge found that the appellant did not allege that she

was ineligible to apply and interview for other positions within the agency, and

that her nonselection for this specific position did not constitute a suitability

action. Initial Appeal File, Tab 10, Initial Decision at 4. We agree with the

administrative judge.

While the Board generally does not have jurisdiction to consider an

agency’s failure to select an applicant for a position, one exception to that rule is

when that nonselection is the result of a suitability determination made by the

Office of Personnel Management (OPM) or by an agency operating under

delegated authority from OPM regarding the appellant’s employment in a covered

position. Ricci v. Merit Systems Protection Board, 953 F.3d 753, 756-57

(Fed. Cir. 2020); 5 C.F.R. § 731.501(a). However, not all suitability

determinations give rise to an appealable “suitability action” under 5 C.F.R.

§ 751.501(a). Ricci, 953 F.3d at 757; Kazan v. Department of Justice,

112 M.S.P.R. 390, ¶ 6 (2009). A suitability action is a (1) cancellation of

eligibility, (2) removal, (3) cancellation of reinstatement eligibility, or

(4) debarment. See Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.101(a).

Here, the appellant has not provided argument or evidence that the

recission of the agency’s tentative job offer was the result of a broader

cancellation of eligibility for Federal employment, or another category of

suitability action named by 5 C.F.R. § 731.101(a). Rather, she argues that

because the agency rescinded its job offer based on a “character-based

assessment, rather than a neutral procedural decision” the Board has jurisdiction.

We disagree.

The denial of an appointment or nonselection for a specific position is not a

suitability action. Ricci, 953 F.3d at 757 (finding that although an agency

determined that an applicant was unsuitable for a criminal investigator position

due to past misconduct, the agency’s “decision to rescind its tentative offer of

employment for that position was not a ‘suitability action’ that could be appealed

to the [B]oard”); Kazan, 112 M.S.P.R. 390, ¶¶ 6-8 (remanding for a determination

of whether an appellant suffered an appealable suitability action when the agency

found him ineligible for the specific position of Aviation Enforcement Officer, as

necessary to establish jurisdiction); 5 C.F.R. § 731.203(c) (“A nonselection . . . is

not a suitability action.”). Accordingly, we find that the appellant did not

establish that the agency took a suitability action as defined in 5 C.F.R.

§ 731.101(a), and we affirm the administrative judge’s finding that the Board

lacks jurisdiction over her appeal. 2

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

To the extent that the appellant argues that the recission of her job offer was

effectively a removal because she was given a start date and she had already completed

preemployment onboarding steps such as fingerprinting, photo identification, and

medical screening, we disagree. Miller v. Merit Systems Protection Board, 794 F.2d

660 (Fed. Cir. 1986) (finding that an appellant was not removed when the agency

rescinded his job offer before he entered on duty); PFR File, Tab 1 at 4.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following