Renee Hart v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RENEE HART, DOCKET NUMBER

Appellant, DA-3443-15-0472-I-1

v.

DEPARTMENT OF DEFENSE, DATE: January 21, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Renee Hart, Battle Creek, Michigan, pro se.

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 her nonselection 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 administrative judge’s rulings during either the course of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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, 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 by this Final Order to find that the Board does not have

jurisdiction over an employment practices claim, we AFFIRM the initial decision.

¶2 The appellant is a GS-11 Contract Specialist for the Defense Logistics

Agency. Initial Appeal File (IAF), Tab 1 at 7. In April 2015, she applied for a

GS-12 Contract Administrator position at the Defense Contract Management

Agency (the agency). Id. at 8-15. On July 1, 2015, the agency informed the

appellant that she had not been selected for the position because she had

withdrawn herself from further consideration. Id. at 14-15.

¶3 The appellant subsequently filed an appeal with the Board and requested a

hearing. Id. at 1-6. She disputed that she had withdrawn herself from further

consideration and asserted that her nonselection was unlawful and discriminatory.

Id. at 5. In an acknowledgment order, the administrative judge informed the

appellant that the Board may not have jurisdiction over her nonselection appeal.

IAF, Tab 2 at 2. She advised the appellant that the Board generally lacks the

authority to address a nonselection claim except where the unsuccessful candidate

alleges that the agency’s decision was made in retaliation for whistleblowing, the

product of discrimination based on uniformed service, or in violation of her

veterans’ preference rights. Id. She ordered the appellant to file evidence and

argument on the jurisdictional issues. Id. After receiving no response from the

appellant, the administrative judge issued an order to show cause further

explaining the appellant’s burden of proving the Board’s jurisdiction over her

3

appeal and ordering her to show cause why her appeal should not be dismissed for

lack of jurisdiction. IAF, Tab 4 at 1-2. She advised the appellant that her failure

to respond to the order would result in the dismissal of the appeal. Id. at 2-3.

The appellant did not respond. IAF, Tab 5, Initial Decision (ID) at 3.

¶4 Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. ID at 1, 3-4.

Specifically, she found that the Board lacks jurisdiction over the appellant’s

nonselection for the Contract Administrator position, and also found that the

Board lacked jurisdiction over any claims of harmful error, prohibited personnel

practices, or discrimination absent an otherwise appealable action. ID at 3-4.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has not filed a response.

¶6 In her petition for review, the appellant states that she did not intend to

ignore the administrative judge’s orders, but was out of the office for surgery and

recovery and then had difficulty accessing her e-Appeal account. Id. at 3-4. She

also disputes the administrative judge’s finding that the Board lacks jurisdiction

over her appeal and asserts that the Board has jurisdiction over unfair and

2

discriminatory employment practices. Id. at 5. Specifically, she alleges that the

2

To the extent that the appellant is asserting an employment practices claim under

5 C.F.R. § 300.104(a), we modify the initial decision to find that she has failed to

nonfrivolously allege that the Board has jurisdiction over this claim because she

does not allege that the Office of Personnel Management (OPM) was involved in her

nonselection, a prerequisite for such a claim. See, e.g., Prewitt v. Merit Systems

Protection Board, 133 F.3d 885, 887-88 (Fed. Cir. 1998) (finding that the appellant

failed to establish the Board’s jurisdiction over his employment practices claim because

he did not show OPM’s “significant” involvement in the selection process). Instead,

she alleges that the agency improperly advised OPM that she had withdrawn her

application. IAF, Tab 1 at 5, 14-15. Ordinarily, an appellant must receive explicit

information on what is required to establish an appealable jurisdictional issue.

Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).

Here, however, the appellant did not assert an employment practices claim that would

have required the administrative judge to have provided her with such notice. Cf.

Parker v. Department of Housing and Urban Development, 106 M.S.P.R. 329, ¶¶ 7-9

(2007) (remanding the appellant’s appeal for jurisdictional notice on and adjudication

4

agency discriminated against her based on her age and failed to: afford her the

priority consideration to which she claims she was entitled; prove that she was

fairly rated for employment; and respond to her request for feedback on the

decision process. Id. at 4-5. In support of her arguments, she submits evidence

of a prior inquiry that she made with the agency into the reason why she was not

considered for a different Contract Administrator position. Id. at 6-10. She also

submits letters from the agency dated March 18, 2014, advising her of her

entitlement to priority consideration for future Contract Specialist and Contract

Administrator positions. Id. at 11-13.

¶7 We find that the appellant’s arguments on review do not provide a reason to

disturb the initial decision. The appellant has the burden of proving the Board’s

jurisdiction by a preponderance of the evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).

Generally, if an appellant makes a nonfrivolous allegation 4 of Board jurisdiction

over an appeal, she is entitled to a jurisdictional hearing. See Garcia v.

Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006)

(en banc). 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 over an employee’s nonselection for a position. Becker v.

Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). Despite the

general lack of jurisdiction, however, an employee may appeal her nonselection

by other statutory means, such as under the Veterans Employment Opportunities

Act, under the Uniformed Services Employment and Reemployment Rights Act,

of his employment practices claim where the appellant explicitly raised this claim

below).

3

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

4

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

5

or through an individual right of action appeal if she claims retaliation for

whistleblowing. See id., ¶¶ 5-6, 9, 12 (addressing a nonselection for a

promotion claim).

¶8 Here, the appellant has indicated that she is not eligible for veterans’

preference and has not claimed any military service or whistleblowing. IAF,

Tab 1 at 1, 4-5. Further, the appellant’s claims of harmful error, age

discrimination, and prohibited personnel practices do not alter the conclusion that

the Board lacks jurisdiction over her nonselection. See Penna v. U.S. Postal

Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that the Board lacks jurisdiction

over an appellant’s harmful error claim absent an appealable underlying action);

Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012)

(finding that the Board does not have jurisdiction over discrimination claims

absent an otherwise appealable action); Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices under 5 U.S.C.

§ 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d

867 (D.C. Cir. 1982).

¶9 For these reasons, we agree with the administrative judge’s finding that the

Board lacks jurisdiction over the appellant’s nonselection appeal and we affirm

the initial decision.

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 review of this final decision by the U.S. Court of Appeals for the Federal

Circuit. You must submit your request to the court at the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

6

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 U.S. 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 U.S. 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 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

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.