The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL MARTIN, DOCKET NUMBER
Appellant, DA-3443-15-0537-I-1
v.
DEPARTMENT OF VETERANS DATE: June 8, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Johnny Ray Deleon, Big Spring, Texas, for the appellant.
Sean Andrew Safdi, Lakewood, Colorado, 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 of the agency action finding him not qualified for a
promotion for lack of jurisdiction. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In January 2014, the appellant, a GS-12 Supervisory Engineering
Technician, was temporarily promoted to Acting Chief of Engineering Service at
the GS-13 level. Initial Appeal File (IAF), Tab 1 at 8, Tab 7 at 65. While the
appellant was serving as Acting Chief, he applied to permanently fill the position.
IAF, Tab 7 at 29, 44-52. On May 20, 2015, however, he was notified that he
was not qualified for the position because his college degree did not support the
level of education required. Id. at 38-39. The agency extended the appellant’s
detail several times until July 27, 2015, at which time he reverted to his GS-12
Supervisory Engineering Technician position. Id. at 25, 28, 43, 53, 57-59, 61, 63.
On August 6, 2015, the appellant filed a Board appeal challenging the agency’s
action, which he characterized as a reduction in grade or pay, a negative
suitability determination, and a “negative evaluation of qualification,” and
requested a hearing. IAF, Tab 1 at 2-3.
¶3 In an acknowledgment order, the administrative judge notified the appellant
that the Board generally lacks jurisdiction over claims that an applicant was not
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hired or that an employee was not promoted, but that the Board may have
jurisdiction where the appellant claims the agency’s decision was made in
retaliation for whistleblowing, the product of discrimination based on uniformed
service, or violative of the candidate’s veterans’ preference rights. IAF, Tab 2
at 2. The appellant responded that the Board has jurisdiction over the matter as a
suitability determination under 5 C.F.R. part 731 because the agency “canceled
his eligibility and debarred [him] from competing for the position.” IAF, Tab 5
at 3. The administrative judge issued a show cause order explaining that the
Board has jurisdiction over certain matters involving suitability for Federal
employment and informing the appellant that the appeal would be dismissed for
lack of jurisdiction unless he made nonfrivolous allegations of fact that, if
proven, would show that the agency took an appealable “suitability action”
against him pursuant to 5 C.F.R. part 731. IAF, Tab 6. The appellant responded
that the agency deprived him of his right to compete for the position due to
“misinterpretation of the educational requirements causing his application to be
disqualified” and argued that he was qualified for the permanent Chief of
Engineering Services position on the basis of his combined education and
experience. IAF, Tab 8 at 5-8.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that a nonselection for a specific
position is not an appealable suitability action. IAF, Tab 11, Initial Decision (ID)
at 2-3. The appellant has filed a petition for review of the initial decision, and
the agency has responded in opposition to the appellant’s petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
¶5 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). Generally, an unsuccessful
candidate for a Federal civil service position has no right to appeal a
nonselection. Kazan v. Department of Justice, 112 M.S.P.R. 390, ¶ 6 (2009).
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Nevertheless, pursuant to regulations of the Office of Personnel Management
(OPM) at 5 C.F.R. part 731, the Board has jurisdiction over certain matters
involving suitability for Federal employment. Id. Specifically, the Board has
jurisdiction over a “suitability action,” which is defined by the regulations as a
cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,
and a debarment. Id.; 5 C.F.R. §§ 731.203(a), 731.501(a). The regulations
specify that a nonselection for a specific position is not a “suitability action,”
even if it is based on the criteria for making suitability determinations set forth at
section 731.202. Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.203(b).
¶6 Here, the agency determined that the appellant was not eligible for the
GS-13 Chief of Engineering Service position because his “college degree does not
support the level of education required at this grade.” IAF, Tab 7 at 38-39. The
agency does not appear to have taken any broader action regarding the appellant’s
eligibility, such as canceling any other eligibilities on other existing competitive
registers. See Kazan, 112 M.S.P.R. 390, ¶ 6. As such, we agree with the
administrative judge’s determination that this appeal involves the nonselection of
the appellant for a specific position, over which the Board lacks jurisdiction.
See 5 C.F.R. § 731.203(b). The appellant has not challenged this finding, and we
discern no basis to disturb it on review. PFR File, Tab 1.
¶7 Although the appellant has not challenged the suitability finding on review,
he argues that the Board has jurisdiction over this appeal pursuant to 5 U.S.C.
§§ 1204(f)(1) and 2302(b)(12). PFR File, Tab 1 at 4-5. 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. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant’s arguments that the
Board has jurisdiction over this claim pursuant to 5 U.S.C. §§ 1204(f)(1) and
2302(b)(12) were not raised below, and he has not alleged that they are based on
new and material evidence or explained why he failed to raise these arguments
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below. PFR File, Tab 1 at 4-5; see IAF, Tabs 1, 5, 8. Absent any such
explanation, we decline to consider his late-raised arguments. See Hammond v.
Department of Veterans Affairs, 98 M.S.P.R. 359, ¶ 6 n.* (2005) (declining to
consider the appellant’s jurisdictional allegation where he raised it for the first
time on review without showing that it was based on previously
unavailable evidence).
¶8 Even if we were to consider the appellant’s arguments, they would not alter
the outcome of this appeal. Under 5 U.S.C. § 1204(f)(1), the Board has the
authority to review rules and regulations promulgated by OPM at the request of
an interested person and may declare the regulation invalid if it either has
required, or would on its face require, an employee to commit a prohibited
personnel practice. 5 U.S.C. § 1204(f)(2). The appellant appears to argue that
the Board has jurisdiction under this section to review 5 C.F.R. parts 300 and 335
because he “was initially deemed qualified for the GS-0801-13 detail, and then
not qualified for the announced position” and six other facilities found him
qualified for the same position at the same grade. PFR File, Tab 1 at 4-5. The
appellant’s disagreement with the agency’s determination that he was not
qualified for a position fails to state a basis for the Board to exercise its
regulation review authority under section 1204(f)(1). The appellant also alleges
that the agency’s action constituted a prohibited personnel practice
under 5 U.S.C. § 2302(b)(12), which prohibits an agency from taking or failing to
take a personnel action that violates the merit systems principles. PFR File,
Tab 1 at 4. However, in the absence of an otherwise appealable action, the
appellant’s prohibited personnel practice claim cannot be considered. See
Davis v. Department of Defense, 105 M.S.P.R. 604, ¶¶ 15-16 (2007) (explaining
that the merit system principles are not themselves a source of Board jurisdiction
and a nonselection is not an otherwise appealable action).
¶9 The appellant states, for the first time on review, that he has exhausted his
Office of Special Counsel (OSC) remedy “regarding the matter appealed, OSC
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File No. MA-15-4202.” PFR File, Tab 1 at 5. Although the Board may have
jurisdiction to consider the appellant’s nonselection claim in the context of an
individual right of action (IRA) appeal, see Ormond v. Department of
Justice, 118 M.S.P.R. 337, ¶ 13 (2012), the appellant’s extremely vague
statement, unaccompanied by any documents, such as an OSC close-out letter or a
description of the OSC complaint, fails to present any reviewable claim at this
time. If the appellant wishes to file an IRA appeal, he may do so with the
regional office in accordance with the Board’s procedures. See 5 C.F.R.
§§ 1209.5-1209.6.
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 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 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.