The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS VICTOR MONTGOMERY, DOCKET NUMBER
Appellant, DC-0731-15-0154-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 14, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Thomas Victor Montgomery, Centreville, Virginia, pro se.
John F. Schorn, and Kevin McEvoy, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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
regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant alleged that during a second interview for a Training
Specialist position, the agency’s selecting official made him a verbal tentative
offer, but that offer was later rescinded. See Initial Appeal File (IAF), Tab 1. He
filed a Board appeal, asserting that the agency made a negative suitability
determination and “Fail[ed] to Honor Offer of Employment,” and he requested a
hearing. Id. at 3-4. The appellant further alleged that the agency committed
several prohibited personnel practices (PPPs) and violated the Veterans
Employment Opportunities Act of 1998 (VEOA). See IAF, Tabs 1, 5-6, 8. The
administrative judge informed the parties that she docketed a separate appeal to
address the appellant’s VEOA allegations. See IAF, Tab 15; see also
Montgomery v. Department of the Treasury, MSPB Docket No. DC-3330-15-
0465-I-1. The administrative judge issued an initial decision that dismissed the
appeal for lack of jurisdiction without holding the appellant’s requested hearing.
IAF, Tab 16, Initial Decision (ID). In pertinent part, the administrative judge
explained that the agency’s alleged tentative selection was never finalized and
formalized, the appellant was not appointed to a federal position, and he never
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entered on duty, nor was there any showing that the Office of Personnel
Management was involved in any suitability determination or that the agency was
acting pursuant to any delegated authority in this regard. See ID at 4. The
administrative judge thus concluded that the agency’s alleged decision to rescind
the verbal offer of employment was a nonselection for a specific position, which
was outside the Board’s jurisdiction. See ID at 5. 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, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 On review, the appellant challenges the administrative judge’s conclusion
that the agency’s action constitutes a nonselection. PFR File, Tab 1 at 4. He also
asks for reconsideration based on Modeste v. Department of Veterans
Affairs, 121 M.S.P.R. 254 (2014), Launer v. Department of the Air Force, 119
M.S.P.R. 252 (2013), and Graves v. Department of Veterans Affairs, 114
M.S.P.R. 245 (2010). PFR File, Tab 1 at 4. The appellant concedes that he was
not barred from any federal register, nor was his eligibility for any position
canceled. Id. He contends, however, that his employment potential at the agency
was “negatively impacted,” and he states that the Board can infer a suitability
action because the agency’s Legal and Security Departments were involved in
reviewing his Optional Form (OF) 306 as part of the selection process. Id. at 4-5.
For the following reasons, the appellant’s petition for review does not persuade us
that a different outcome is warranted.
¶4 The record reflects that, in September 2014, the agency acknowledged
receipt of the appellant’s OF 306 and requested additional information regarding
two prior convictions for disorderly conduct. See IAF, Tab 10 at 11-13. The
record further reflects that in November 2014, the agency informed the appellant
that he was not the “best candidate” for the position “based on [his]
unprofessional behavior as an applicant.” IAF, Tab 1 at 9. In that
4
correspondence, the agency explained that “one example” of the appellant’s
unprofessional behavior was an October 3, 2014 email that he sent to the agency’s
selecting official, which stated, among other things, that the selecting official was
“unprofessional” and “not man enough to admit what [he] said” and that he (the
appellant) would not want to work for someone who “backtracks, flip flops, and
does not honor his word.” Id. at 9-11. The agency’s November 2014
correspondence does not refer to the appellant’s OF 306 or any information
contained therein. See id. at 10-11.
¶5 The Board’s jurisdiction is not plenary; it 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). Generally, an
unsuccessful candidate for a federal civil service position has no right to appeal
his nonselection. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 93
(1992). 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 eligib ility,
and a debarment. 5 C.F.R. § 731.203(a). A nonselection for a specific position is
not a “suitability action” even where it is based on the criteria for making a
suitability determination as set forth in 5 C.F.R. § 731.202. 2 See Rodriguez v.
Department of Homeland Security, 112 M.S.P.R. 446, ¶ 9 (2009); see also
Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.203(b). Thus, even if the agency’s
decision not to select the appellant for the Training Specialist was based, in part,
on his prior convictions as described in his OF 306, the appellant has not
nonfrivolously alleged that the agency’s action constitutes a suitability action
over which the Board has jurisdiction.
2
Factors that may be considered include misconduct or negligence in employment,
criminal or dishonest conduct, and material, intentional false statement, or deception or
fraud in examination or appointment. See 5 C.F.R. § 731.202(b).
5
¶6 The appellant’s citations to Modeste, Launer, and Graves are unavailing
because those cases discuss VEOA and do not concern suitability actions. For
these reasons, we affirm the administrative judge’s decision to dismiss the appeal
for lack of jurisdiction without holding the appellant’s requested hearing. 3
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:
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
3
Although not specifically mentioned by the administrative judge in the in itial decision,
it is imp lied in that decision that the Board also lacks jurisdiction to hear the appellant’s
assertion that the agency’s action constituted PPPs. See, e.g., 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).
6
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 an appeal to the
United States 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 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.