Paul J. Gant v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAUL J. GANT, DOCKET NUMBER

Appellant, DA-0731-13-1251-I-1

v.

DEPARTMENT OF HOMELAND DATE: October 8, 2014

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paul J. Gant, Brownsville, Texas, pro se.

Byron D. Smalley, Washington, D.C., for the agency.

Lisa M. Ezra, and Stephanie L. Ciechanowski, Esquire, Laredo, Texas, 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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

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. We MODIFY

the initial decision to discuss the agency’s reliance on 5 C.F.R. § 332.406, and we

find that the Board lacks jurisdiction over the appeal on this alternative basis.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a Federal Bureau of Prisons employee, filed an appeal

challenging the agency’s decision to withdraw tentative offers for positions as a

Customs and Border Protection (CBP) Officer and Border Patrol Agent, and

arguing that the agency made a negative suitability determination. Initial Appeal

File (IAF), Tab 1; see IAF, Tab 5, Subtab 2C (CBP Officer Application Final

Disposition), Subtab 2D (Border Patrol Agent Final Disposition), Subtab 2F (the

agency’s “Unfavorable Suitability Determination” based on “[c]riminal or

dishonest conduct”). 2 The agency filed a motion to dismiss for lack of

jurisdiction. IAF, Tab 5. The administrative judge issued a show cause order,

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The appellant also asserted that he was a whistleblower, the administrative judge

separately docketed an individual right of action (IRA) appeal, and she dismissed the

appeal when the appellant informed her that he wanted to withdraw his IRA appeal and

file a complaint with the Office of Special Counsel. See Gant v. Department of

Homeland Security, MSPB Docket No. DA-1221-14-0125-W-1, Initial Decision

(Feb. 19, 2014). The appellant did not file a petition for review of that initial decision.

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explaining that the Board might not have jurisdiction over the appeal because it

did not appear that the appellant had been subjected to a suitability action, and

she ordered him to show cause why the appeal should not be dismissed for lack of

jurisdiction. See IAF, Tab 18. In his response, made under penalty of perjury,

the appellant stated that CBP informed him that if he decided to reapply for a

position with CBP, the results of his last background investigation and/or

polygraph examination would be used for future investigations for a minimum of

3 years. IAF, Tab 20 at 4; see IAF, Tab 5, Subtabs 2C, 2D. He also stated that he

was “verbally told over the phone by CBP that in reality [he] was debarred for

life” and, if he applied for any other positions, “the information would be

presented to the respective agency and used to deem [him] unsuitable for

employment.” IAF, Tab 20 at 4.

¶3 The administrative judge issued an initial decision dismissing the appeal for

lack of jurisdiction because the agency’s nonselection for these positions did not

constitute an appealable suitability action. See IAF, Tab 21, Initial Decision (ID)

at 4-6. The appellant filed a petition for review, the agency filed a response, and

the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 4-5. On

review, the appellant argues that the agency’s actions constituted appealable

suitability actions, and he otherwise generally contests the merits of the agency’s

actions. After the record closed on review, the appellant subsequently filed a

motion to compel, to which the agency responded. PFR File, Tabs 6, 8.

We affirm the administrative judge’s conclusion that the appellant did not make a

nonfrivolous allegation that the agency took a suitability action against him.

¶4 The record contains a May 28, 2013 memorandum which stated, in pertinent

part, that “[a]n unfavorable suitability determination has been rendered” for the

appellant based on “[c]riminal or dishonest conduct.” IAF, Tab 5, Subtab 2F.

The determination stated that it applied to “All CBP Federal Employment.” Id.

Based on this memorandum, the agency informed the appellant that: (1) he was

found unsuitable for the CBP Officer and Border Patrol Agent positions; (2) the

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agency rescinded his tentative selection for these positions in accordance

with 5 C.F.R. § 332.406; (3) he did not have Board appeal rights to challenge the

agency decisions; and (4) the results of the background investigation and

polygraph examination would be used in future investigations for the next

3 years. See IAF, Tab 5, Subtabs 2C, 2D.

¶5 Under the suitability regulations, only a “suitability action” may be

appealed to the Board. See Kazan v. Department of Justice, 112 M.S.P.R. 390,

¶ 6 (2009); see also 5 C.F.R. § 731.501(a). A “suitability action” is defined as a

cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,

and a debarment. 5 C.F.R. § 731.203(a). A nonselection for a specific position is

not a “suitability action” even where, as here, it is based on the criteria for

making a suitability determination as set forth in 5 C.F.R. § 731.202. 3 See

Rodriguez v. Department of Homeland Security, 112 M.S.P.R. 446, ¶ 9 (2009);

Kazan, 112 M.S.P.R. 390, ¶ 6; Upshaw v. Consumer Product Safety

Commission, 111 M.S.P.R. 236, ¶ 8 (2009), modified by Scott v. Office of

Personnel Management, 116 M.S.P.R. 356 (2011), modified, 117 M.S.P.R. 467

(2012); see also 5 C.F.R. § 731.203(b).

¶6 The agency’s use of the term “Unfavorable Suitability Determination” in its

memorandum is inartful, but it does not transform the agency’s action into an

appealable suitability action. See, e.g., Gregory v. Merit Systems Protection

Board, 469 F. App’x 891, 893 (Fed. Cir. 2012) (“[The General Services

Administration’s (GSA’s)] use of the word ‘suitability’ in providing notice to

Gregory does not alter the substance of the GSA’s actions.”), cert

denied, 133 S. Ct. 417 (2012). The Board may follow nonprecedential decisions

of the U.S. Court of Appeals for the Federal Circuit to the extent that it finds

them to be persuasive. Weed v. Social Security Administration, 113 M.S.P.R.

221, ¶ 11 (2010). We find the court’s reasoning persuasive.

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Criminal and dishonest conduct is one of the specific factors that may be considered.

See 5 C.F.R. § 731.202(b).

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¶7 We also have considered the appellant’s argument, made again on review,

that he was debarred. PFR File, Tab 1; see IAF, Tab 20 at 4. An agency

debarment is defined as a denial of examination for, or appointment to, all or

specific covered positions within that agency for a period of up to 3 years, based

on a finding of unsuitability. See 5 C.F.R. § 731.205(a). There is no evidence

that the agency took such action. To the contrary, the agency appeared to expect

that the appellant might reapply for another position. See IAF, Tab 5,

Subtabs 2C, 2D (informing the appellant that, if he decided to reapply for a

position with CBP, the results of his last background investigation and/or

polygraph examination would be used for future investigations for a minimum of

3 years). The appellant’s assertion that an unidentified CBP employee told him

on an unspecified date that he was “debarred for life,” IAF, Tab 20 at 4, does not

constitute a nonfrivolous allegation that the agency took a suitability action

against him, see, e.g., Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 11 (2009)

(finding that facts without support do not constitute nonfrivolous allegations).

¶8 Because the appellant failed to make a nonfrivolous allegation that the

agency took a suitability action against him, we agree with the administrative

judge’s decision to dismiss the appeal for lack of jurisdiction. See Gregory,

469 F. App’x at 893-94 (“[T]here is no evidence that Gregory was removed or

debarred from any position, that his reinstatement eligibility 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.”).

We modify the initial decision to discuss the agency’s reliance on 5 C.F.R.

§ 332.406, and we conclude that, even under this alternative authority, the Board

lacks jurisdiction over the appeal.

¶9 An agency that wishes to not appoint an individual from a certificate based

on any of the reasons identified in 5 C.F.R. § 731.202(b), including as here,

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criminal and dishonest conduct, may make an objection pursuant to 5 C.F.R.

§ 332.406. See Recruitment and Selection Through Competitive Examination,

74 Fed. Reg. 30459, 30460 (June 26, 2009). Because the agency relied

on 5 C.F.R. § 332.406 in its “Unfavorable Suitability Determination” and its

correspondence to the appellant, see IAF, Tab 5, Subtabs 2C, 2D, 2F, and the

administrative judge did not specifically analyze the agency’s reliance on this

regulation in the initial decision, we modify the initial decision to discuss this

regulation.

¶10 Subsection (a) of 5 C.F.R. § 332.406 delegates to agencies the authority to

adjudicate objections to eligibles. See Pecard v. Department of

Agriculture, 115 M.S.P.R. 31, ¶ 10 (2010). In this context, an “[o]bjection” is

“an agency’s request to remove a candidate from consideration on a particular

certificate.” 5 C.F.R. § 332.102. Subsection (b) of 5 C.F.R. § 332.406 states that

an objection may be sustained “only if it is based on a proper and adequate

reason,” which includes the criteria for making suitability determinations in 5

C.F.R. part 731. Subsection (g) states that an individual may not appeal to the

Board a decision by an agency with delegated authority to sustain an objection. 5

C.F.R. § 332.406(g).

¶11 Even if we consider the agency’s action pursuant to this alternative

authority, the Board lacks jurisdiction over the appeal. The agency has delegated

authority to sustain an objection, and criminal and dishonest conduct constitutes a

“proper and adequate reason” to sustain an objection. 5 U.S.C.

§§ 332.406(a), (b). Because the agency’s rescission of the appellant’s tentative

offers is based on a sustained objection pursuant to 5 C.F.R. § 332.406, the

appellant may not appeal these decisions to the Board.

The appellant’s motion to compel is denied.

¶12 In his motion to compel, the appellant explains that he made a Freedom of

Information Act (FOIA) request to the agency on May 10, 2013, but the

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information requested was not “fully and completely answered.” PFR File, Tab 6.

We need not consider the timeliness of the appellant’s motion because the Board

does not have jurisdiction to adjudicate the appellant’s complaint that the agency

did not comply with his FOIA request. See Cortright v. Department of

Transportation, 37 M.S.P.R. 565, 570 (1988); see also 5 U.S.C. § 552(a)(4)(B)

(only U.S. district courts have jurisdiction to decide disputes over an agency’s

compliance with FOIA).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. You must submit your request to the court at the following

address:

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.

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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

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.