Opinion

Michael Shumaker v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jul 17, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.7%

finding that OPM made a “pivotal decision” that ultimately resulted in the nonselection

How later courts described this case

finding that OPM made a “pivotal decision” that ultimately resulted in the nonselection
noting that OPM “played no part” in the agency’s nonselection

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL R. SHUMAKER, DOCKET NUMBER

Appellant, DC-3443-16-0816-I-1

DEPARTMENT OF HOMELAND DATE: July 17, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael R. Shumaker, Fairfax, Virginia, pro se.

Stephanie E. Sawyer, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, 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 in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. 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 tha t

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 applied for the position of Deputy Executive Director,

Program Accountability and Risk Management, a Senior Executive Service (SES)

position at the agency. Initial Appeal File (IAF), Tab 1 at 5, Tab 8 at 18-24. He

was informed that his application did not indicate that he met the minimum

requirements for the position. IAF, Tab 5 at 15-16. The appellant subsequently

contacted several agency officials in the Executive Services Division who

reviewed his application and confirmed that he lacked the necessary experience

for the position. Id. at 10-22.

¶3 The appellant timely filed this appeal, and he requested a hearing. IAF,

Tab 1. Below, he alleged that the agency officials who reviewed his application

violated the basic requirements for employment practices set forth in 5 C.F.R.

§ 300.103 and agency Management Directive 3030.1 by misreading his résumé,

erroneously finding that he did not meet the minimum qualifications for the

position, and failing to forward his application to the SES rating panel. IAF,

Tab 5 at 3-4, 10-14. Without holding the requested hearing, the administrative

judge found that the Board does not have jurisdiction to adjudicate the

employment practices used to review the appellant’s application for an SES

position. IAF, Tab 18, Initial Decision (ID) at 3. The administrative judge found

in the alternative that, even if the appellant had been seeking a position in the

competitive service, instead of an SES position, the Board lacked jurisdiction

over his appeal because it concerned a single unfavorable personnel action rather

than a practice or the application of a practice, and he did not show that the

Office of Personnel Management (OPM) had any involvement in the

administration of the alleged employment practices. ID at 4.

¶4 The appellant has filed a petition for review and a supplemental petition for

review, the agency has filed a response, and the appellant has filed a reply.

Petition for Review (PFR) File, Tabs 1-2, 4, 7. The agency also has filed a

motion to strike the appellant’s supplemental petition for review. PFR File,

Tab 5. The appellant thereafter filed a motion to request leave to file his

supplemental petition. PFR File, Tab 6. We grant the appellant’s motion to file a

supplemental petition for review, and we deny the agency’s motion to strike that

submission.

DISCUSSION OF ARGUMENTS ON REVIEW

¶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, a nonselection is

not appealable directly to the Board. 2 Pridgen v. Office of Management and

Budget, 117 M.S.P.R. 665, ¶ 6 (2012). However, an applicant for employment

On review, the appellant challenges the administrative judge’s characterizing the

agency’s action as a nonselection, and he submits evidence that the agency canceled the

vacancy announcement. E.g., PFR File, Tab 1 at 5, 18, 23. Because we find that the

Board lacks jurisdiction over this employment practices appeal, we need not address

this evidence or argument.

who believes that an employment practice 3 applied to him by OPM violates a

basic requirement in 5 C.F.R. § 300.103 is entitled to appeal to the Board.

Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶ 5 (2011); 5 C.F.R.

§ 300.104(a). The Board has jurisdiction over an employment practices appeal

pursuant to 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 inv olved in

administering; and (2) the appellant must make a nonfrivolous allegation 4 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;

Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008).

¶6 The appellant asserts on review that the regulation at 5 C.F.R. § 300.101

allows him to challenge an employment practice that affects his selection to any

initial appointment within the Federal Government, including to an SES position.

PFR File, Tab 1 at 6-7. This argument is unavailing. The stated purpose of this

regulation is to establish principles to govern employment practices “that affect

the recruitment, measurement, ranking, and selection of individuals for initial

appointment and competitive promotion in the competitive service.” 5 C.F.R.

§ 300.101 (emphasis added). Moreover, the Board has held that the regul ations at

5 C.F.R. part 300 only apply to the competitive service. Walters v. U.S. Postal

Service, 65 M.S.P.R. 115, 118 (1994). 5 As the administrative judge noted in the

The regulation at 5 C.F.R. § 300.101 states that “the term ‘employment practices’

includes the development and use of examinations, qualification standards, tests, and

other measurement instruments.”

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

issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous

when, under oath or penalty of perjury, an individual makes an allegation that is more

than conclusory, is plausible on its face, and is material to the legal issues in the appeal.

Id.

We are not persuaded by the appellant’s assertion that the administrative judge

improperly relied on Walters in the initial decision. PFR File, Tab 1 at 8; ID at 3.

initial decision, positions in the SES are specifically excluded from the

competitive service. ID at 3 (citing, among other things, 5 U.S.C.

§ 2102(a)(1)(C) and 5 C.F.R. § 212.101(a)(1)); see Dean v. Department of the Air

Force, 620 F. App’x 959, 959 (Fed. Cir. 2015) (per curiam) (explaining that

“[c]ivil service positions in the executive branch may be classified as one of

several types including: ‘competitive service,’ ‘specifically excepted from the

competitive service,’ filled through an appointment requiring Senate

confirmation, and [SES]”). 6 We therefore agree with the administrative judge

that the regulations at 5 C.F.R. part 300 do not apply to selecting individuals for

SES positions, including the position at issue in this appeal.

¶7 Even if we determined that the position to which the appellant applied was

somehow in the competitive service, a different outcome is not warranted. We

have considered the appellant’s assertion that the agency committed an appealable

employment practice when it misapplied a valid OPM requirement under 5 C.F.R.

part 300. E.g., PFR File, Tab 1 at 9-17. The appellant states a correct

proposition of law, see, e.g., Richardson v. Department of Defense, 78 M.S.P.R.

58, 61 (1998); Banks v. Department of Agriculture, 59 M.S.P.R. 157, 160 (1993),

aff’d, 26 F.3d 140 (Fed. Cir. 1994) (Table), but he has not persuaded us that the

administrative judge erred. Even though the term “employment practice” is to be

construed broadly, it does not encompass an individual agency action that is not

made pursuant to a rule or practice, such as an irregularity in the selection

process. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 887 (Fed. Cir.

1998); see Richardson, 78 M.S.P.R. at 61 (finding that the appellant’s challenge

to how the agency rated and handled her individual application is not within the

Board’s jurisdiction). We construe the appellant’s contention that the agency

The Board may follow a nonprecedential decision of the U.S. Court of Appea ls for the

Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.

Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 11 n.5 (2016).

misread his résumé or experience as an irregularity in the selection process, and

the Board therefore lacks jurisdiction to adjudicate such claims in an employment

practices appeal. See Prewitt, 133 F.3d at 887 (concluding that the alleged error

by an agency employee in misidentifying the appellant’s race and the race of

other applicants “is more aptly characterized as an irregularity in the selection

process” and is not an employment practice that is appealable to the Board under

5 C.F.R. § 300.104(a)); see also Banks, 59 M.S.P.R. at 160 (holding that the

appellant’s bare allegation that the agency failed to fully consider his education

and experience in making a selection did not establish that the agency subjected

him to an employment practice that fell within the Board’s jurisdiction).

¶8 We also have considered the appellant’s argument that OPM was involved

in administering the employment practice because the vacancy announcement was

posted on the USAJOBS website. PFR File, Tab 1 at 9-11. This argument is also

unavailing. To be appealable, OPM’s involvement in administering an agency’s

alleged employment practice must be “significant.” Prewitt, 133 F.3d at 888. We

are not persuaded that posting the vacancy announcement on the USAJOBS

website constitutes “significant” involvement in the agency’s selection process by

OPM. Id. Compare Maule v. Merit Systems Protection Board, 812 F.2d 1396,

1398 (Fed. Cir. 1987) (finding that OPM made a “pivotal decision” that

ultimately resulted in the nonselection), with Dowd v. Office of Personnel

Management, 745 F.2d 650, 651 (Fed. Cir. 1984) (noting that OPM “played no

part” in the agency’s nonselection). Because we agree with the administrative

judge that the Board lacks jurisdiction over this appeal, she properly dismissed

the appeal without holding the requested hearing. 7 ID at 5.

In our analysis of the jurisdictional issue, we have considered the supplemental

petition for review, which includes a September 2016 report from the Government

Accountability Office regarding converting political appointees to career positions and

a November 27, 2016 newspaper article which appeared to discuss Congressional

concerns regarding converting political appointees to career positions. PFR File, Tab 2

¶9 Finally, the appellant argues that the administrative judge’s order to stay

discovery and decision to deny his two motions for sanctions constituted an abuse

of discretion and affected the outcome of this appeal. PFR File, Tab 1 at 20-22;

IAF, Tabs 13-14, 17. We disagree. The Board will not reverse an administrative

judge’s rulings on discovery matters imposing sanctions absent an abuse of

discretion. Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010);

Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d,

996 F.2d 1236 (Fed. Cir. 1993) (Table). The abuse of discretion standard is “a

very high standard” and allows for “great deference.” Pecard, 115 M.S.P.R. 31,

¶ 15. The appellant has not persuaded us that the administrative judge’s rulings

constituted an abuse of discretion. Indeed, the appellant has not persuaded us that

any evidence that he sought to obtain through discovery would affect our decision

on the jurisdictional issue. See Vores v. Department of the Army, 109 M.S.P.R.

191, ¶ 14 (2008) (explaining that the appellant must show how an administrative

judge’s alleged errors when ruling on discovery matters affected the result

reached below), aff’d, 324 F. App’x 883 (Fed. Cir. 2009). Moreover, the

administrative judge found that, contrary to the appellant’s assertion in his

motions for sanctions, IAF, Tabs 13-14, the agency’s response to the

acknowledgment order was timely filed, ID at 3. For these reasons, we conclude

that the administrative judge did not abuse her discretion when she is sued an

order staying discovery and denied the appellant’s motions for sanctions.

at 9-16, 18-20. Even if we determined that this information constituted “new”

evidence, the Board will not grant a petition for review based on new evidence absent a

showing that it is of sufficient weight to warrant an outcome different from that of the

initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The

appellant has not made such a showing.

NOTICE OF APPEAL RIGHTS 8

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 9 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the