The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL EDWARD KENNEDY, DOCKET NUMBER
Appellant, PH-3443-15-0184-I-1
v.
NATIONAL ARCHIVES AND DATE: March 18, 2016
RECORDS ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael Edward Kennedy, Princess Anne, Maryland, pro se.
Jennifer Klein, Esquire, College Park, Maryland, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant applied and was selected for the GS-4 position of Archives
Technician. Initial Appeal File (IAF), Tab 1 at 12, 19. The position was subject
to a background investigation or security clearance requirement. Id. at 12. The
agency later removed the appellant from the certificate of highly qualified
candidates and withdrew its offer of employment, finding that he was “not
suitable for th[e] position based on a review of [his] background.” IAF, Tab 1
at 23, Tab 15 at 12.
¶3 The agency based this decision on the Office of Personnel Management’s
(OPM) Suitability Guidelines, which indicate that criminal conduct and sexual
behavior of a criminal nature are factors that may be considered in evaluating an
individual’s eligibility for access to classified information. IAF, Tab 1 at 23,
Tab 15 at 46, 52-53, 60-61. In particular, the agency’s security officer, P.A.,
considered that the appellant previously was convicted for rape and murder.
October 2, 2015 Hearing Compact Disc (HCD) (testimony of P.A.). P.A.
determined that under Maryland law this conviction required the appellant to
register as a sex offender, thus precluding him from entering various buildings
containing daycare centers, which he would have been required to enter if
employed as an Archives Technician. Id.
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¶4 The appellant filed an appeal with the Board alleging that his nonselection
constituted a suitability action and violated his rights under the Veterans
Employment Opportunities Act of 1998 (VEOA). IAF, Tab 1. He also claimed
that the agency committed a harmful procedural error and engaged in prohibited
discrimination. Id. at 5. He requested a hearing. Id. at 2.
¶5 After holding a jurisdictional hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 24, Initial
Decision (ID). He found that the appellant failed to establish that the agency took
a suitability action against him because its actions were limited to the position for
which he applied. ID at 10-11. He rejected the appellant’s argument that the
agency’s withdrawal of its offer of employment constituted a constructive
suitability determination, finding that the Board does not recognize such claims
and, furthermore, that under 5 C.F.R. § 731.203(b) a nonselection or cancellation
of eligibility for a specific position based on an objection to an eligible
under 5 C.F.R. § 332.406 does not constitute a suitability action. ID at 11-13.
He found that the appellant failed to establish Board jurisdiction under VEOA
because he did not demonstrate that he exhausted his Department of Labor (DOL)
remedy and failed to allege that the agency violated any right accorded to him
under a statute or regulation relating to veterans’ preference. ID at 13. In light
of the dismissal for lack of jurisdiction, he found that he could not reach the
appellant’s harmful procedural error and discrimination claims. ID at 13-14.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He maintains that the agency’s act of removing him from the
certificate constituted a suitability action, thus conferring Board jurisdiction. Id.
at 14. He disputes that the suitability determination was limited to a specific
position, arguing that the basis for the determination effectively bars him from all
employment with the agency. Id. at 12-13. He contends that the administrative
judge misapplied Hillen v. Department of the Army, 35 M.S.P.R. 453, 458-62
(1987) in concluding that he was not subjected to a suitability action. PFR File,
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Tab 1 at 12. He also disputes the agency’s suitability determination, arguing that:
(1) a Maryland Circuit Court determined that the Maryland law upon which P.A.
relied in determining that he was required to register as a sex offender, and thus
precluded from entering buildings containing daycare centers, is inapplicable to
him; 2 (2) the agency failed to establish that its suitability determination was based
on proper and adequate reasons as required under 5 C.F.R. §§ 332.406(b)
and 731.202; and (3) the agency should not have relied upon a criminal
conviction that occurred 35 years ago. 3 PFR File, Tab 1 at 8-11, 15-16, 18-20.
He asserts that, to the extent that the agency relied upon 5 C.F.R. § 332.406, its
objection cannot be sustained because it improperly failed to submit a Standard
Form 62 and notify OPM prior to removing his name from the certificate of
highly qualified candidates. 4 PFR File, Tab 1 at 13-15. He also claims that the
2
He also claims that the law of the case doctrine therefore precludes the agency from
relying on its belief that he was required to register as a sex offender. PFR File, Tab 1
at 10-11. The law of the case doctrine is inapplicable here, as the proceeding before the
Maryland Circuit Court is not part of the same litigation as the instant appeal. See
Nease v. Department of the Army, 103 M.S.P.R. 118, ¶ 10 (2006).
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The appellant argues that 5 C.F.R. § 731.203(b) is ambiguous, in that it is unclear if it
applies where, as here, a selectee’s offer of employment is withdrawn, as opposed to
when an applicant never becomes a selectee. PFR File, Tab 1 at 17. He concedes that
he did not raise this argument below, and, as such, we need not consider it now. Id.;
see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (holding that the
Board generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence). Notwithstanding, we note that his
argument does not provide a basis for review. See Sapla v. Department of the Navy,
118 M.S.P.R. 551, ¶ 12 (2012) (finding that the agency’s withdrawal of an employment
offer based on the appellant’s lack of candor in the application process constituted a
denial of appointment and nonselection and thus, under 5 C.F.R. § 731.203(b), was not
a suitability action).
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The Board does not have jurisdiction to review an agency with delegated authority’s
decision to sustain an objection pursuant to 5 C.F.R. part 332, irrespective of the reason
for the decision. 5 C.F.R. § 332.406(g). To the extent that the appellant is claiming a
violation of his veterans’ preference rights, we discern no basis to disturb the
administrative judge’s finding that the appellant has not established Board jurisdiction
over this appeal under VEOA. ID at 13. Although we do not agree that the
acknowledgment order provided proper jurisdictional notice, IAF, Tab 2 at 2, we find
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suitability determination was discriminatory based on his sexual orientation and
criminal history. Id. at 11, 19. The agency filed a response in opposition, to
which the appellant did not reply. PFR File, Tab 4.
¶7 The sole relevant issue on review is whether, as a threshold matter, the
Board has jurisdiction over this appeal. Under 5 C.F.R. § 731.501(a), only a
suitability action may be appealed to the Board. Kazan v. Department of
Justice, 112 M.S.P.R. 390, ¶ 6 (2009). A suitability action is defined as a
cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,
or a debarment. Id.; 5 C.F.R. § 731.203(a). OPM’s regulations governing
suitability actions specify that a denial of appointment or nonselection for a
position is not a suitability action. Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R.
§ 731.203(b). For the reasons set forth below, we discern no basis to disturb the
administrative judge’s finding that the Board lacks jurisdiction over this matter
because the agency’s action in this case was not a suitability action, but rather, a
nonselection that may not be appealed to the Board.
¶8 The administrative judge considered that an agency Human Resources
Specialist, S.H., told the appellant that the agency’s security office found him
“unsuitable for employment with [the] agency.” ID at 3-5; IAF, Tab 1 at 23.
However, in weighing the evidence, he found that S.H. clearly was mistaken
when she made that statement. ID at 10-11. As the administrative judge
observed, the official notice informing the appellant of his nonselection stated
that he was found “not suitable for this position.” IAF, Tab 15 at 12 (emphasis
added); ID at 11. When notifying S.H. of her suitability determination, P.A. told
S.H. that she had “found [the appellant] unsuitable,” but did not state that her
that the initial decision cured that error, ID at 13; see Easterling v. U.S. Postal Service,
110 M.S.P.R. 41, ¶ 11 (2008) (stating that an administrative judge’s failure to provide
an appellant with proper jurisdictional notice can be cured if the initial decision puts the
appellant on notice of what he must do to establish jurisdiction, thus affording him the
opportunity to meet his jurisdictional burden in the petition for review). On review, the
appellant has not alleged or provided any evidence that he exhausted his DOL remedy.
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determination extended to positions other than the one for which the appellant
had applied. IAF, Tab 1 at 23. Further, P.A. testified that: (1) her suitability
determination was limited to the Archives Technician position for which the
appellant applied; (2) she took no action to cancel his eligibility for any other
position or to debar him from employment with the agency; and (3) she was
unaware of any cancellation of eligibility or debarment imposed upon the
appellant by any other individual at the agency and would have been aware of
such actions had they occurred. HCD (testimony of P.A.); ID at 6-7, 11. S.H.
testified that: (1) she took no action that would affect the appellant’s ability to
apply for other positions with the agency and did not direct anyone else to do so;
and (2) to her knowledge, the agency has not taken any action to debar the
appellant from, or to cancel any eligibilities he may have for, employment with
the agency. HCD (testimony of S.H.).
¶9 Based on the foregoing, we agree with the administrative judge that the
weight of the evidence establishes that the agency did not take a suitability action
against the appellant. The appellant’s mere disagreement with the administrative
judge’s well-reasoned conclusion does not establish a basis for review. See
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987) (stating that mere reargument of factual issues already raised and properly
resolved by the administrative judge below does not establish a basis for review).
¶10 As to the appellant’s claim that the agency has constructively taken a
suitability action against him because P.A.’s suitability determination effectively
prevents him from being employed with the agency, we disagree. 5 PFR File,
5
In support of this claim below, the appellant argued that his nonselection for other
positions further proves that he has effectively been barred from employment with the
agency as a result of P.A.’s suitability determination. ID at 6; IAF, Tab 1 at 8, Tab 5
at 69, Tab 15 at 13-14. The administrative judge rejected that argument, finding that
the appellant failed to refute the agency’s assertion that his nonselections for those
positions were unrelated to suitability issues. ID at 6, 11. The appellant does not
specifically dispute that determination on review, and we discern no basis to disturb it.
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Tab 1 at 12-13. That the appellant’s criminal conviction may have the effect of
precluding him from being hired for other Federal positions does not establish
that the agency has taken a suitability action against him. Because we lack
jurisdiction in this matter, we cannot reach the appellant’s arguments concerning
the procedural aspects and merits of the agency’s suitability determination or his
discrimination claims. See Pridgen v. Office of Management and
Budget, 117 M.S.P.R. 665, ¶ 7 (2012) (stating that the Board does not have
jurisdiction over discrimination claims absent an otherwise appealable action);
Kazan, 112 M.S.P.R. 390, ¶ 6.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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:
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 a nd
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
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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.