Thomas J. Luchay v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THOMAS J. LUCHAY, DOCKET NUMBER

Appellant, PH-3443-13-2901-I-1

v.

DEPARTMENT OF THE NAVY, DATE: August 12, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thomas J. Luchay, Mullica Hill, New Jersey, pro se.

Toya M. McLendon, Esquire, West Bethesda, Maryland, 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 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 erroneous interpretation of statute or

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a GS-13 Chemical Engineer, filed a Board appeal

challenging a September 10, 2012 grievance decision that investigated and found

without merit the appellant’s assertion that the selectee for the Branch Head

position “falsified his résumé/questionnaire.” Initial Appeal File (IAF), Tab 1;

see also IAF, Tab 12 at 8-9 (grievance decision). The appellant, in response to

the agency’s motion to dismiss and two orders to show cause, asserted that:

(1) the agency committed a prohibited personnel practice; (2) the agency engaged

in age discrimination because the selectee was 10 years younger than the

appellant and other interview candidates; and (3) the Board had jurisdiction over

the appeal as an employment practices appeal and a suitability determination. See

IAF, Tabs 5, 8, 11. The administrative judge issued an initial decision in which

he dismissed the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision

(ID). The administrative judge determined that the appellant did not

nonfrivolously allege that the agency violated an employment practice as applied

to him or that the agency took a suitability action. See ID at 3-5. As to the

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appellant’s age discrimination claim, the administrative judge noted that the

appellant’s “bare” claim did not make the action appealable as an employment

practice pursuant to 5 C.F.R. § 300.104(a) and that the Board lacks jurisdiction

over a discrimination claim absent jurisdiction over the appeal under some other

basis. See ID at 4 n.2. The administrative judge also noted that the Board lacked

jurisdiction over the appellant’s claim that the agency action violated the merit

system principles. See ID at 2 n.1. Finally, the administrative judge concluded

that, even if the appellant met the other jurisdictional requirements for appealing

a grievance decision and the subject matter was grievable, the Board lacked the

authority to review the grievance decision because it was not a final decision.

See ID at 6 n.3 (stating that Article 10, Section 2d of the labor management

agreement specifically excluded examination, certification, or appointment from

the grievance procedures).

¶3 The appellant filed a petition for review, the agency filed a response, and

the appellant filed a reply. See Petition For Review (PFR) File, Tabs 1, 3-4. On

review, the appellant argues that the Board has jurisdiction over this appeal under

employment practices and suitability theories.

¶4 We discern no error with the administrative judge’s conclusion that the

Board lacks jurisdiction over this matter as an employment practices appeal.

Indeed, the appellant has not identified, as required by 5 C.F.R. § 300.104(a), any

alleged employment practice applied to him. ID at 4; see Dow v. General

Services Administration, 590 F.3d 1338, 1342-44 (Fed. Cir. 2010) (stating that, in

order for the Board to have jurisdiction, it is “necessary that the challenged

employment practice have been applied to the applicant as the basis for the

adverse hiring decision,” and concluding that the alleged employment practice,

the Outstanding Scholar Program, was not the basis for Mr. Dow’s

nonselection); 5 C.F.R. § 300.104(a) (“A candidate who believes that an

employment practice which was applied to him or her by the Office of Personnel

Management violates a basic requirement in § 300.103 is entitled to appeal to the

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Merit Systems Protection Board under the provisions of its regulations.”). The

appellant’s assertion that his scores and the scores of other candidates were

“intentionally deflated” as compared to the selectee, PFR File, Tab 1 at 8, does

not constitute a nonfrivolous allegation of an employment practice that was

applied to him, see Banks v. Department of Agriculture, 59 M.S.P.R. 157, 160

(1993) (the Board lacks jurisdiction over the appellant’s challenge to his

nonselection and the agency’s alleged irregularities in the selection process),

aff’d, 26 F.3d 140 (Fed. Cir. 1994); see also Prewitt v. Merit Systems Protection

Board, 133 F.3d 885, 887 (Fed. Cir. 1998) (holding that “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’”).

¶5 The appellant’s brief discussion of McDonnell v. Department of

Agriculture, 108 M.S.P.R. 443 (2008), at PFR File, Tab 1 at 10, is not persuasive

because the Board, in that matter, discussed an individual right of action (IRA)

appeal, which involves a different jurisdictional burden, see, e.g., Yunus v.

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (explaining

that the Board has jurisdiction over an IRA appeal if the appellant has exhausted

his administrative remedies before the Office of Special Counsel and makes

nonfrivolous allegations that: (1) he engaged in whistleblowing activity by

making a protected disclosure; and (2) the disclosure was a contributing factor in

the agency’s decision to take or fail to take a personnel action).

¶6 We also discern no error with the administrative judge’s conclusion that the

Board lacks jurisdiction over this matter as a suitability appeal. The appellant

appears to concede on review that there is no evidence that the Office of

Personnel Management (OPM) or the agency, pursuant to delegated authority

from OPM, took a suitability action. See PFR File, Tab 1 at 5 (“Under 5 [C.F.R.]

§ 1201.3(a)(9) [which discusses suitability actions], the [administrative judge]

and I are in agreement that jurisdiction under this statute does not apply in this

case.”). The appellant appears to argue, however, that the agency’s investigation

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of his allegation that the selectee falsified his résumé or application qualifies as a

specific factor for making a suitability determination pursuant to 5 C.F.R.

§ 731.202(b), and he therefore nonfrivolously alleged that the agency made a

suitability determination. See id. at 12. We find this argument unpersuasive.

Under 5 C.F.R. § 731.202(b), a “[m]aterial, intentional false statement, or

deception or fraud in examination or appointment” is a factor to be considered as

a basis for making a suitability determination; however, the appellant’s allegation

that the selectee falsified his application materials and the agency’s apparent

investigation of that allegation does not automatically convert his claim into an

appealable suitability action. 2

¶7 The appellant also asserts on review that the administrative judge’s

suitability analysis does not address the Board’s decision in National Treasury

Employees Union v. Office of Personnel Management, 118 M.S.P.R. 83 (2012).

PFR File, Tab 1 at 13. He states that this case stands for the proposition that the

Board’s statutory jurisdiction extends to other suitability actions such as

debarment and cancellation of eligibilities because, in conjunction with removal

actions, these actions lie outside the Board’s jurisdiction as components of a

unitary penalty arising from the same underlying misconduct. See id. The

appellant further asserts that the “underlying misconduct” in this case is a

prohibited personnel practice. Id. This argument is not persuasive. The National

Treasury Employees Union case does not stand for the proposition cited by the

appellant. Rather, the Board extended its jurisdiction to a review of such

suitability actions in the context of a removal in Aguzie v. Office of Personnel

2

Even if we were to determine that the agency’s investigation of the appellant’s

allegation that the selectee falsified his application materials somehow satisfied the

criteria for making a suitability determination as described in 5 C.F.R. § 731.202(b), the

appellant’s nonselection for a specific position does not constitute a suitability action

even if it is based on reasons set forth in 5 C.F.R. § 731.202. See 5 C.F.R.

§ 731.203(b); see Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236,

¶ 8 (2009).

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Management, 116 M.S.P.R. 64, ¶ 34 (2011). The Board’s analysis in Aguzie does

not govern our disposition in this matter because, here, there is no chapter 75

action, such as a removal or suspension of more than 14 days, from which the

Board has statutory jurisdiction. See 5 U.S.C. §§ 7512, 7513(d). Moreover, the

appellant’s allegation that the agency committed a prohibited personnel practice

is not an independent source of Board jurisdiction. 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).

¶8 On review, the appellant reiterates that his February 1, 2012 grievance was

not pursuant to collective bargaining procedures. PFR File, Tab 1 at 12; see IAF,

Tab 11 at 7-8 (explaining that the form he used to file his grievance was not the

form for filing collective bargaining agreement procedures). The appellant has

not persuaded us that this fact, even if true, warrants a different outcome on the

jurisdictional issue.

¶9 Also on review, the appellant includes a February 1, 2012 grievance form, a

December 21, 2011 Freedom of Information Act response, and “[e]xamples of

falsification and lack of qualifications” of the selectee. PFR File, Tab 1 at 4, 14-

59. These documents were either in the record below and do not constitute new

evidence or they do not change the outcome on review. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the

Interior, 3 M.S.P.R. 247, 256 (1980).

¶10 In light of our disposition, we need not address the timeliness of the

appellant’s appeal.

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:

7

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.

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

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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.