The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN J. CARROLL, DOCKET NUMBER
Appellant, CH-3443-16-0042-I-1
v.
OFFICE OF PERSONNEL DATE: April 12, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John J. Carroll, Frankton, Indiana, pro se.
Julie Ferguson Queen, Esquire, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 filed an appeal against the Department of Veterans Affairs
(DVA) challenging his nonselection for an Equipment Operator position. Initial
Appeal File (IAF), Tab 1. He alleged that the DVA took a negative suitability
action against him 2 and discriminated against him on the basis of an unspecified
disability. Id. at 3. He included copies of two contradictory email messages he
received from the Office of Personnel Management (OPM); the first indicated that
OPM had referred him to the DVA for an Equipment Specialist position, and the
second, dated just over a week later, indicated that the appellant was “not
referred” because he was not eligible for the position. Id. at 8-9. The appellant
did not request a hearing. Id. at 2. The administrative judge granted DVA’s
motion to substitute OPM as the proper responding agency because the record
2
The appellant appears to allege on review that the reason OPM found him not eligible
for the position at issue is his height. Petition for Review File, Tab 1 at 3. Although it
is not clear that is what happened, such physical characteristics are not among the
specific factors that comprise an appealable suitability action. 5 C.F.R. §§ 731.202(b),
731.501. Moreover, a nonselection is also not a suitability action, even if based on the
reasons defined in the pertinent regulations. Upshaw v. Consumer Product Safety
Commission, 111 M.S.P.R. 236, 240 (2009); 5 C.F.R. § 731.201(a). Thus, the record
does not reflect that either agency involved subjected the appellant to an appealable
suitability action.
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reflected that OPM was the agency that concluded that the appellant would not be
referred for the position at issue. IAF, Tab 4. The administrative judge then
issued a revised acknowledgment order designating OPM as the responding
agency. IAF, Tab 6. The administrative judge informed the appellant of his
jurisdictional burden and ordered him to file evidence and argument to establish
jurisdiction over his appeal. Id. at 2-3. The appellant did not respond.
¶3 Because the appellant failed to allege that OPM’s decision finding him not
eligible for the Equipment Specialist position was made in retaliation for
whistleblowing, was the product of discrimination based on his uniformed
service, 3 or violated any of his veterans’ preference rights, the administrative
judge properly found that the appellant failed to make a nonfrivolous allegation
of jurisdiction and dismissed the appeal on that basis. IAF, Tab 8, Initial
Decision (ID) at 3-4. In his timely filed petition for review, the appellant asserts
for the first time that he is a “combat veteran with 20% disability.” Petition for
Review (PFR) File, Tab 1 at 3. He contends that a human resources
representative “referred and qualified” him for the position at issue and claims
that he is “currently working a job study with this job and even the boss wants me
working there.” Id. He argues that the administrative judge failed to consider
evidence and failed to contact the human resources representatives to see who
was not following the standard operating procedure for hiring. Id. at 4. The
agency responds in opposition. PFR File, Tab 6.
¶4 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). Thus, it follows that the
Board does not have jurisdiction over all matters alleged to be unfair or incorrect.
Roberts v. Department of the Army, 168 F.3d 22, 23-24 (Fed. Cir. 1999). The
Board’s appellate jurisdiction is set forth at 5 C.F.R. § 1201.3. It is well settled
3
The appellant claimed that he was entitled to veterans’ preference. IAF, Tab 1 at 1.
4
that the Board generally does not have jurisdiction to review an agency’s decision
not to select a particular applicant for a vacant position. Brown v. Office of
Personnel Management, 91 M.S.P.R. 314, 318 (2002); Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 93 (1992). As the administrative judge correctly
explained, there are exceptions to this general rule, i.e., when that nonselection
was made in retaliation for whistleblowing, was the product of discrimination
based on the applicant’s uniformed service, or violated any of his veterans’
preference rights, and the appellant has the burden of establishing the Board’s
jurisdiction by making nonfrivolous allegations of fact that, if proven, would
show that his claims fell within one of those exceptions. 5 C.F.R. § 1201.57;
IAF, Tab 5 at 2, Tab 6 at 2. The appellant did not allege any of those bases in his
appeal, IAF, Tab 1, and he did not respond to the administrative judge’s
acknowledgment orders.
¶5 The appellant asserts for the first time in his petition for review that he is a
combat veteran with 20% disability. PFR File, Tab 1 at 3. The Board 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. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). The appellant makes no such showing. Moreover,
the appellant’s claim does not aid him in establishing jurisdiction over his appeal.
An allegation of discrimination based on a disability arising from military service
is not a claim cognizable under one of the exceptions identified by the
administrative judge, i.e., the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA). McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998)
(explaining that USERRA proscribes the denial of initial employment based on
the performance of military duty, not on the basis of a veteran’s disability arising
out of his performance of that duty). However, because USERRA provides an
independent jurisdictional basis, the appellant may file a new appeal with the
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Board’s regional office if he believes that the agency discriminated against him in
violation of USERRA. 38 U.S.C. § 4324.
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 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 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
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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.