The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRETT D. FLEISCH, DOCKET NUMBER
Appellant, DC-3443-16-0313-I-1
v.
NATIONAL SCIENCE DATE: December 6, 2016
FOUNDATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brett D. Fleisch, Riverside, California, pro se.
Deanne Sobczak, Arlington, Virginia, 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 employment practices 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 require d 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).
BACKGROUND
¶2 The appellant was an employee of the University of California. Initial
Appeal File (IAF), Tab 8 at 13. From February 13 to March 28, 2004, the
appellant was appointed to the agency as an intermittent expert. IAF, Tab 3 at 11,
14. The appointment was nonpermanent and in the excepted service. Id. From
March 29, 2004, until September 30, 2007, he was detailed to the agency under
the Intergovernmental Personnel Act (IPA). IAF, Tab 3 at 14, Tab 8 at 13-16. In
January 2014, he applied for a position with the agency that was advertised under
vacancy announcement number ACI-2014-0001; however, the agency did not
select him for the position. IAF, Tab 3 at 14, 47.
¶3 The appellant filed this appeal on January 23, 2016, and requested a
hearing. IAF, Tab 1. He alleged that the agency denied him reinstatement when
it did not select him for the position that he applied for in January 2014 and that
the agency failed to recognize his prior Federal service as an IPA employee when
considering his application. Id. at 4.
3
¶4 In an acknowledgment order, the administrative judge informed the
appellant of his burden of proving the Board’s jurisdiction over his appeal. IAF,
Tab 2 at 2-5. The administrative judge noted that, although the Board generally
lacks jurisdiction over a nonselection, there are five exceptions whereby the
Board has jurisdiction over a nonselection. Id. at 2-3. In particular, he apprised
the appellant of the requirements of showing Board jurisdiction over an alleged
employment practice violation under 5 C.F.R. § 300.104(a). Id. at 3-5. He
ordered the appellant to file evidence and argument on the jurisdictional issue.
Id. at 5. The appellant responded that the Board had jurisdiction over his appeal
because the agency and the Office of Personnel Management (OPM) had applied
to him an employment practice in violation of 5 C.F.R. § 300.103 by using
“faulty data” in his Standard Form 50 (SF-50) that “did not give proper credit for
[F]ederal service time to IPAs.” IAF, Tab 3 at 4. 2 He also raised a claim of
discrimination against IPA employees. Id. The agency argued that the appeal
should be dismissed for lack of jurisdiction and as untimely filed. IAF, Tab 8
at 4-8. The appellant filed a pleading in response that raised another
discrimination claim. IAF, Tab 9. In a second order, the administrative judge
explained to the appellant the relevant jurisdictional and timeliness issues. IAF,
Tab 12. He ordered the appellant to respond to these issues. Id. at 3. The
appellant’s response to the order was rejected as untimely filed. IAF, Tab 14.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial
Decision (ID) at 1, 6. Specifically, the administrative judge found that the
agency put the appellant on notice that he would not be considered a Federal
employee during the time he served as an IPA employee. ID at 4. The
2
Although the appellant cited “5 U.S.C. § 300.103,” which does not exist, we assume
he meant to refer to 5 C.F.R. § 300.103. IAF, Tab 3 at 4; see Thompson v. Office of
Personnel Management, 81 M.S.P.R. 677, ¶ 5 (1999) (stating that a pro se appellant is
not required to plead issues with the precision of an attorney in a judicial proceeding).
4
administrative judge further found that, instead of challenging an employment
practice that violated a requirement set forth in 5 C.F.R. § 300.103, the appellant
was challenging his nonselection for a specific position, a matter over which the
Board lacks jurisdiction. ID at 4-5. The administrative judge found, too, that the
appellant was not entitled to reinstatement because he was not previously
employed in the competitive service and that the Board lacks jurisdiction to
review his reinstatement claim under 5 C.F.R. § 315.401. ID at 5-6.
Additionally, the administrative judge found that, to the extent the appellant
raised claims of discrimination and retaliation, such claims were beyond the
Board’s purview absent an appealable action. ID at 6. Finally, the administrative
judge denied the appellant’s request for a hearing because he had failed to raise a
nonfrivolous allegation of Board jurisdiction. Id.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1-4. The agency has filed a response. PFR File, Tab 6. The appellant
has filed a reply to the agency’s response. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 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). If an appellant makes a
nonfrivolous allegation 3 of Board jurisdiction over an appeal, he is entitled to a
jurisdictional hearing at which he must prove jurisdiction by a preponderance of
the evidence. 4 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
(Fed. Cir. 2006) (en banc), superseded on other grounds as stated in Clark v.
U.S. Postal Service, 123 M.S.P.R. 466 (2016); 5 C.F.R. § 1201.56(b)(2)(i)(A).
3
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
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).
5
¶8 Generally, a nonselection is not appealable directly to the Board. Prewitt v.
Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998). As the
administrative judge correctly informed the appellant, however, an applicant for
employment who believes that an employment practice applied to him by OPM
violates a basic requirement set forth in 5 C.F.R. § 300.103 is entitled to appeal to
the Board. IAF, Tab 2 at 3-4; Burroughs v. Department of the Army,
116 M.S.P.R. 292, ¶ 15 (2011); 5 C.F.R. § 300.104(a). The Board has
jurisdiction over an employment practice claim under 5 C.F.R. § 300.104(a) when
the following two conditions are met: (1) the appeal must concern an
employment practice that OPM is involved in administering; and (2) the appellant
must make a nonfrivolous allegation that the employment practice violated one of
the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Burroughs, 116 M.S.P.R. 292, ¶ 15. Moreover, an agency’s
misapplying a valid OPM requirement may constitute an appealable employment
practice action. Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 10 (2007).
The term “employment practices” includes the development and use of
examinations, qualification standards, tests, and other measurement instrum ents.
Id.; 5 C.F.R. § 300.101. Although that term is to be construed broadly, “an
individual agency action or decision that is not made pursuant to or as part of a
rule or practice of some kind does not qualify as an ‘employment practice.’”
Prewitt, 133 F.3d at 887.
¶9 Here, the administrative judge properly found that the appellant failed to
nonfrivolously allege that the agency or OPM applied an employment practice to
him that violated a requirement set forth in 5 C.F.R. § 300.103. ID at 4-5. The
appellant argued below that the agency’s and OPM’s refusal to recognize as
Federal service his detail to the agency under the IPA violated 5 C.F.R.
§ 300.103(c) because this meant he was discriminated against based on a
nonmerit factor. IAF, Tab 3 at 4. However, we find that he has failed to identify
an employment practice that OPM is involved in administering. See, e.g.,
6
Richardson v. Department of Defense, 78 M.S.P.R. 58, 61 (1998) (finding no
jurisdiction over an employment practices appeal when the appellant failed to
identify a basic requirement that was missing from the instrument the agency used
to evaluate her application and she was simply contesting the agency’s rating and
handling of her individual application).
¶10 Further, we agree with the administrative judge’s finding that the Board
lacks jurisdiction to review a denial of reinstatement claim under 5 C.F.R.
§ 315.401. ID at 6; see Hicks v. Department of the Navy, 33 M.S.P.R. 511, 513
(1987) (finding that the administrative judge correctly held that 5 C.F.R.
§ 315.401 does not provide the Board with jurisdiction over an agency’s alleged
denial of reinstatement rights under that section). Because the appellant has
failed to specify a statute or regulation that provides the Board with jurisdiction
over a denial of reinstatement claim, we decline to review the administrative
judge’s finding that the appellant is not entitled to reinstatement. ID at 5-6; see
Hipona v. Department of the Army, 39 M.S.P.R. 522, 525 (1989) (stating that
there is no statute or regulation that provides the Board with jurisdiction to
review an agency’s decision to deny reinstatement eligibility to an individual
applying for employment).
¶11 In his petition for review, the appellant reasserts that OPM and the agency
discriminated against him by refusing to recognize his detail to the agency under
the IPA as Federal service. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. However,
as stated above, he has failed to specify an employment practice that OPM is
involved in administering. Burroughs, 116 M.S.P.R. 292, ¶ 15. He also reiterates
his claim that the agency denied him reinstatement, but fails to state a basis for
Board jurisdiction over such claim. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. In
addition, his arguments that he has reinstatement eligibility because he performed
Federal service as an IPA employee and that his SF-50 is missing data are
insufficient to establish Board jurisdiction. PFR File, Tab 1 at 1-2, Tab 2, Tab 4
at 3, Tab 7. The appellant claims that the administrative judge ignored the “Cusik
7
memo” in his pleading. PFR File, Tab 7; IAF, Tab 3 at 15-27. However, an
administrative judge’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision. Marques v. Department
of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
(Fed. Cir. 1985) (Table). Moreover, the “Cusik memo” concerning the ethical
obligations of individuals serving on detail to Federal agencies under the IPA is
not relevant to the dispositive jurisdictional issue before us. IAF, Tab 3 at 15-27.
¶12 For the first time on review, the appellant raises a claim of retaliation for
whistleblowing and alleges that he has filed a complaint with the Office of
Special Counsel. 5 PFR File, Tab 1 at 1. We decline to address his claim further
though because he did not raise this argument below and has not explained his
failure to do so. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980) (observing that, generally, 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).
¶13 The administrative judge stated the general rule that the appellant’s
discrimination and retaliation claims could not confer jurisdiction on the Board
when it does not otherwise exist. ID at 6; see Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980) (stating 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, 871-73 (D.C. Cir. 1982). Yet, in the context of an employment practices
appeal, this rule does not apply. Richardson, 78 M.S.P.R. at 62. A basic
requirement under 5 C.F.R. § 300.103(c) is that employment practices may not
discriminate based on nonmerit factors. Further, an exception to the general rule
that the Board lacks jurisdiction over nonselections is when an appellant claims
that a nonselection was made in retaliation for whistleblowing or certain
5
Although the administrative judge made a finding regarding a potential retaliation
claim, we find no evidence in the record that the appellant actually raised a retaliation
claim below. ID at 6.
8
protected activity. IAF, Tab 2 at 3. However, the administrative judge’s
overbroad statement did not prejudice the appellant’s substantive rights and, thus,
does not provide a basis for disturbing the initial decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
¶14 Accordingly, we find that the administrative judge properly dismissed this
appeal for lack of jurisdiction.
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.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited perso nnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
9
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.