# David Shaw v. Department of Veterans Affairs

> Merit Systems Protection Board · April 24, 2024

URL: https://www.frixlaw.com/law-library/cases/9963452

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 24, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DAVID R. SHAW, DOCKET NUMBER
Appellant, DE-300A-18-0232-I-1

v.

DEPARTMENT OF VETERANS DATE: April 24, 2024
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David R. Shaw , Wichita, Kansas, pro se.

Zane P. Schmeeckle , Kansas City, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

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
on an erroneous interpretation of statute or regulation or the erroneous application
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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. Except as
expressly MODIFIED as to the basis for the lack of jurisdiction over the
employment practices claim, we AFFIRM the initial decision.

BACKGROUND
The appellant is a preference-eligible veteran and was appointed to a
career-conditional appointment as a GS-12 IT Specialist (INFOSEC), effective
July 1, 2012. Initial Appeal File (IAF), Tab 6 at 33. The agency posted a
vacancy announcement for a competitive-service GS-13 IT Specialist (INFOSEC)
position, which was open from January 3 to 9, 2018. Id. at 15, 24-32.
The announcement also provided that it would close earlier if “an adequate pool
of at least 50 eligible applicants is reached.” Id. at 26. The agency closed the
announcement on January 4, 2018, after exceeding this number. Id. at 15-22, 24.
The appellant did not apply to the vacancy. IAF, Tab 1 at 5. However, he filed
an appeal with the Board challenging the agency’s actions related to the job
announcement. 2 Id. at 1, 5. He requested a hearing. Id. at 2.
In an acknowledgment order, the administrative judge informed the
appellant of his burden of proving the Board’s jurisdiction over his appeal. IAF,
2
During the adjudication of a related Veterans Employment Opportunity Act of 1998
(VEOA) appeal, the appellant seemed to raise an employment practices claim.
See Shaw v. Department of Veterans Affairs, MSPB Docket No. DE-3330-18-0231-I-1.
The administrative judge docketed the employment practices claim as this separate
appeal.
3

Tab 2 at 3-4. He set forth the circumstances in which the Board may exercise
jurisdiction over an employment practices claim under 5 C.F.R. part 300,
subpart A. Id. He ordered the appellant to file evidence and argument on this
jurisdictional issue. Id. at 4-5. The appellant responded that by limiting the
number of applicants to 50 and closing the announcement after less than 24 hours,
the agency discriminated against disabled veterans in violation of 5 C.F.R.
§ 300.103(c). IAF, Tab 8 at 4.
Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID). He found that the appellant failed to nonfrivolously allege
that the agency’s early closure of the vacancy announcement constituted a
violation of a basic requirement of 5 C.F.R. § 300.103. ID at 3-4.
The appellant timely filed a petition for review. 3 Petition for Review (PFR)
File, Tab 1. The agency filed a response to the petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant failed to establish
jurisdiction over his employment practices claim. ID at 1-2. We agree.
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). An applicant for employment who
believes that an employment practice applied to him by the Office of Personnel
Management (OPM) violates a basic requirement in 5 C.F.R. § 300.103 is entitled
to appeal to the Board under 5 C.F.R. § 300.104(a). Sauser v. Department of
Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010). The Board has jurisdiction under
5 C.F.R. § 300.104(a) when two conditions are met: first, the appeal must
concern an employment practice that OPM is involved in administering; and

3
The petition for review also contains the appellant’s arguments for his VEOA appeal,
which we address in our decision in that separate appeal. See Shaw v. Department of
Veterans Affairs, MSPB Docket No. DE-3330-18-0231-I-1.
4

second, the employment practice must be alleged to have violated one of the
“basic requirements” for employment practices set forth in 5 C.F.R. § 300.103.
Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008).
“Employment practices,” as defined in OPM’s regulations, “affect the
recruitment, measurement, ranking, and selection” of applicants for positions in
the competitive service. 5 C.F.R. § 300.101. The administrative judge found that
the appellant failed to meet his burden to nonfrivolously allege that the early
closure of the vacancy announcement prevented disabled veterans from applying
for jobs. ID at 4.
We modify this reasoning to find that the appellant failed to establish
jurisdiction for an even more fundamental reason. Here, the appellant’s concerns,
below and on review, are about the agency’s actions before he was able to apply
to the vacancy job announcement, not about how it arrived at its decision to select
one candidate over another. IAF, Tab 1 at 5, Tab 8 at 4; PFR File, Tab 1 at 4-5.
The alleged violations do not concern matters related to the appellant’s status as
an applicant for employment because, as is undisputed, he did not apply to the job
vacancy. IAF, Tab 1 at 5. However, only “candidates” may bring employment
practices appeals to the Board under 5 C.F.R. § 300.104(a). National Treasury
Employees Union v. Office of Personnel Management, 118 M.S.P.R. 83, ¶ 9
(2012). Because only a candidate for employment can file an employment
practices appeal, the fact that the appellant did not apply for the vacancy is fatal
to his appeal. 4 Therefore, the appellant has not raised a cognizable employment
practices claim within the Board’s jurisdiction.

4
On review, the appellant reasserts his argument that the agency’s practices of
providing less than 24 hours for applicants to apply to a job vacancy announcement
violated 5 C.F.R. § 300.103(c). PFR File, Tab 1 at 4. However, in light of our finding
that the appellant is not a “candidate” who may bring employment practices appeals to
the Board under 5 C.F.R. § 300.104(a), we lack jurisdiction to consider whether the
alleged employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103.
5

The appellant also alleges that the agency committed a prohibited personnel
practice under 5 U.S.C. § 2302(b) by “keeping the announcement open for less
than 24 hours in order to improve the chances of specific individuals that had
prior knowledge that the announcement would be posted.” PFR File, Tab 1 at 5.
However, general allegations of violations of merit system principles and
prohibited personnel practices do not constitute an independent source of Board
jurisdiction. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980),
aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). Therefore, in the absence of an
appealable action, the Board does not have jurisdiction to consider the appellant’s
allegations that the agency committed prohibited personnel practices.
Accordingly, we find that the administrative judge correctly dismissed the appeal
for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.

5
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.
6

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:
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
7

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:
8

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. 6 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).

6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9

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
following address:
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.
Contact information for the 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 .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9963452. Public record. Not legal advice.