UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES P. CAMPION, DOCKET NUMBER
Appellant, DC-3443-15-0321-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 7, 2015
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James P. Campion, Bethesda, Maryland, pro se.
Letitia Byers, Esquire, Washington, D.C, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal from his nonselection for a
development program. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant, a preference-eligible veteran, has a career appointment as a
Chief Information Officer, GS-0391-15, with the Department of Defense. Initial
Appeal File (IAF), Tab 1. On or about December 1, 2014, he submitted an
application for the agency’s Senior Executive Service (SES) Candidate
Development Program (CDP). 2 Id. The vacancy announcement indicated that
“all groups of qualified individuals within the Federal service” were invited to
apply. Id. The announcement further explained that, to be considered minimally
eligible, an applicant must have experience at the GS-15 level (or equivalent),
and 1 year of supervisory experience. Id. The announcement indicated that
status applicants, i.e., applicants serving under career or career-type appointments
within the civil service, were not entitled to veterans’ preference. Id. As
instructed, the appellant submitted his résumé and a current Standard Form 50.
Id. He also submitted a Certificate of Release or Discharge from Active Duty (a
DD-214), although only nonstatus applicants seeking veterans’ preference were
invited to do so. Id.
¶3 On December 30, 2014, the agency issued a Notice of Results (NOR),
informing the appellant that his application had been reviewed and he had been
determined to be ineligible for the CDP. Id. The NOR included the rating code
“IAOC,” indicating that the appellant could not be referred for the position
because he was outside the “area of consideration.” Id. The NOR did not
2
Although listed as series and grade GS-0301-00, the SES CDP is not a position per se,
but a training program “designed to develop the talents and skills of individuals with
executive potential in order to create a cadre of candidates who can assume senior
management positions at the SES-level as vacancies occur.” IAF, Tab 1. Participation
does not guarantee placement in an SES position. Id. Participants holding Federal
status remain in their full-time position of record while completing program
requirements. Id.
3
indicate on what basis the appellant had been found to be outside the area of
consideration. Id.
¶4 On January 9, 2015, the appellant filed an appeal contesting the NOR. Id.
He contended that the Office of Personnel Management (OPM) had found him
ineligible because his application was “missing a simple check-box mark for his
federal status,” and had disregarded the other information and documents
provided in his application. Id. The agency moved to dismiss the appeal, arguing
that the proper responding party was OPM, which made the eligibility
determination. IAF, Tab 8.
¶5 The administrative judge denied the motion, finding that the agency was the
proper respondent. IAF, Tab 10. The administrative judge further noted that
there was an issue as to the Board’s jurisdiction, because nonselections are
generally not appealable to the Board. Id. at 3. He identified three exceptions to
that general rule:
They are when the unsuccessful candidate claims that the agency’s
decision was: made in retaliation for his whistleblowing, see
5 U.S.C. § 2302(a)(2)(A)(i); the product of discrimination based on
uniformed service, see 38 U.S.C. §§ 3311 [sic], 3 4324; or violative of
the candidate’s veterans’ preference rights, see 5 U.S.C.
§ 3330a(d)(1).
Id. The administrative judge, however, did not refer to the Whistleblower
Protection Act (WPA), the Uniformed Services Employment and Reemployment
Rights Act (USERRA), or the Veterans Employment Opportunities Act (VEOA)
by name, or apprise the appellant of his rights and burdens under the pertinent
statutes. The administrative judge also did not mention the appellant’s possible
appeal rights under the “right to compete” provisions of VEOA. See 5 U.S.C.
§§ 3304(f)(1), 3330a(a)(1)(B). Nor did he make any reference to 5 C.F.R.
§ 300.104(a), which provides a right to appeal to the Board where a candidate
3
It appears the administrative judge intended to cite 38 U.S.C. § 4311, not
section 3311.
4
believes that an employment practice applied to him by OPM violates the basic
requirements of 5 C.F.R. § 300.103. Nonetheless, the administrative judge
ordered the appellant to show why his appeal should not be dismissed for lack of
jurisdiction. IAF, Tab 10.
¶6 In his response to the order, the appellant explained that he was specifically
contesting the denial of his “right to compete” for the CDP. IAF, Tab 12. He
further contended that the agency had committed two prohibited personnel
practices. First, he argued that by finding him ineligible despite proof of his
Federal career status, the agency deceitfully and willfully obstructed his right to
compete for employment, in violation of 5 U.S.C. § 2302(b)(4). Id. He further
alleged that the agency had violated 5 U.S.C. § 2302(b)(11)(B), which provides
that it is a prohibited personnel practice to “knowingly fail to take, recommend,
or approve any personnel action if the failure to take such action would violate a
veterans’ preference requirement.” Id. The agency filed a response in which it
argued that none of the three exceptions identified by the administrative judge
was applicable here and that the Board therefore lacked jurisdiction over the
appeal. IAF, Tab 15.
¶7 On March 4, 2015, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 16, Initial Decision (ID).
He found that, to the extent the appellant was seeking to bring an appeal under
VEOA, the Board lacked jurisdiction because the appellant had not shown that he
had exhausted his administrative remedy with the U.S. Department of Labor
(DOL). Id.; 5 U.S.C. § 3330a(d)(1). The administrative judge further found that,
in the absence of an otherwise appealable action, the Board did not have
jurisdiction to consider the appellant’s prohibited personnel practice claims. Id.
¶8 On petition for review, the appellant essentially reiterates the arguments set
forth in his response to the jurisdictional order. Petition for Review (PFR) File,
Tab 1. In its response, the agency argues that the appellant’s petition does not
meet the criteria for review. PFR File, Tab 3.
5
ANALYSIS
¶9 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). As the administrative judge
correctly noted, a nonselection is not directly appealable to the Board. 4 See
Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 5 (2008). Furthermore,
the appellant’s claims of prohibited personnel practices under 5 U.S.C.
§ 2302(b)(4) and (b)(11) are not themselves independent sources of Board
jurisdiction. Cf. 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). There are, however, several possible
situations in which the Board might have jurisdiction to consider a challenge to a
nonselection.
¶10 First, under the WPA, as amended, the Board may have jurisdiction over an
individual right of action (IRA) appeal alleging that the agency’s decision was the
result of a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) or
(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a). To establish jurisdiction
over an IRA appeal, the appellant must prove that he exhausted his administrative
remedies before the Office of Special Counsel, and also make nonfrivolous
allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action. Linder v. Department
of Justice, 122 M.S.P.R. 14, ¶ 6 (2014).
¶11 Second, under USERRA, the Board may have jurisdiction over a claim that
the nonselection was the product of discrimination based on uniformed service.
4
The appellant contends that he is not appealing a nonselection, but rather, the denial
of his “right to compete” for the CDP. IAF, Tab 12; PFR File, Tab 1. However, we
view an alleged denial of the “right to compete” not as a matter distinct from the
resulting nonselection, but rather as a theory under which the nonselection may be
challenged. See Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 5 (2008).
6
See 38 U.S.C. §§ 4311, 4324. To establish Board jurisdiction over a USERRA
appeal alleging discrimination based on uniformed service, the appellant must:
(1) show that he performed duty in a uniformed service of the United States;
(2) nonfrivolously allege that he lost a benefit of employment; and
(3) nonfrivolously allege that the benefit was lost due to the performance of duty
in the uniformed service. Hammond v. Department of Veterans Affairs,
98 M.S.P.R. 359, ¶ 7 (2005).
¶12 Third, under VEOA, the Board may have jurisdiction over a claim that the
agency’s action violated the appellant’s veterans’ preference rights. 5 U.S.C.
§ 3330a(a)(1)(A), (d)(1). To establish Board jurisdiction over such an appeal, an
appellant must: (1) show that he exhausted his remedy with DOL; and (2) make
nonfrivolous allegations that (i) he is a preference eligible within the meaning of
the VEOA, (ii) the action(s) at issue took place on or after October 30, 1998, and
(iii) the agency violated his rights under a statute or regulation relating to
veterans’ preference. Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162,
¶ 9 (2003), overruled on other grounds by Goldberg v. Department of Homeland
Security, 99 M.S.P.R. 660 (2005).
¶13 In addition, the Board may have jurisdiction under VEOA to consider a
claim that the agency violated 5 U.S.C. § 3304(a)(f)(1), which provides that
preference eligibles or veterans who have been separated from the armed forces
under honorable conditions after 3 or more years of active service may not be
denied the opportunity to compete for vacant positions for which the agency
making the announcement will accept applications from individuals outside its
own workforce under merit promotion procedures. 5 U.S.C. § 3330a(a)(1)(B),
(d)(1). To establish Board jurisdiction over a “right to compete” appeal under
5 U.S.C. § 3330a(a)(1)(B), an appellant must: (1) show that he exhausted his
remedy with the DOL; and (2) make nonfrivolous allegations that (i) he is a
veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took
place on or after the enactment date of the Veterans’ Benefits Improvement Act
7
of 2004, and (iii) the agency, in violation of 5 U.S.C. § 3304(f)(1), denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its own
workforce. Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5
(2010).
¶14 Finally, an appellant may appeal a nonselection if he believes an
employment practice applied to him by OPM violates the basic requirements set
forth at 5 C.F.R. § 300.103. See 5 C.F.R. § 300.104(a). To establish Board
jurisdiction under 5 C.F.R. § 300.104(a), an appellant must show the following:
(1) that the agency action at issue constitutes an employment practice within the
meaning of 5 C.F.R. Part 300, Subpart A; (2) that the employment practice
violates the basic requirements of 5 C.F.R. § 300.103; and (3) that OPM is
involved in the administration of the employment practice. Mapstone v.
Department of the Interior, 106 M.S.P.R. 691, 696 (2007). The term
“employment practice,” as defined at 5 C.F.R. § 300.101, includes the
development and use of examinations, qualification standards, tests, and other
measurement instruments, and is meant to be given a “broad and inclusive
meaning.” Dowd v. United States, 713 F.2d 720, 723 (Fed. Cir. 1983). The basic
requirements under 5 C.F.R. § 300.103 are that an employment practice be based
on a job analysis, rationally related to performance to be filled, and
nondiscriminatory on the basis of race, color, religion, sex, age, national origin,
partisan political affiliation, or other nonmerit factor. Metzenbaum v. General
Services Administration, 96 M.S.P.R. 104, ¶ 13 n.7 (2004).
¶15 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Here, the administrative judge did
not inform the appellant, even in broad outline, of what he had to show in order to
8
5
establish jurisdiction under any of the authorities discussed above. See IAF,
Tab 10. This error was magnified by the appellant’s pro se status. See Boughton
v. Department of Agriculture, 94 M.S.P.R. 347, ¶ 4 (2003). Under these
circumstances, we find that the appellant must be provided another opportunity to
establish jurisdiction over his appeal.
¶16 Accordingly, we vacate the initial decision and remand this case to the
regional office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
5
The agency set out the jurisdictional requirements of a VEOA claim under 5 U.S.C.
§ 3330a(a)(1)(A) in its opposition to the appellant’s response to the jurisdictional
order. IAF, Tab 15 at 7. The Board has held that an appellant may receive notice of
his burden of proof on jurisdiction through the agency’s motion to dismiss. Yost v.
Department of Health & Human Services, 85 M.S.P.R. 273, ¶ 3 (2000), aff’d, 4 F.
App’x 900 (Fed. Cir. 2001). In this case, however, the appellant did not have an
opportunity to respond to the agency’s pleading below, and the clarity of the notice
provided by the agency was diminished by the administrative judge’s subsequent
failure to set out the jurisdictional requirements or correctly cite the pertinent statute in
the initial decision. See ID at 4. Moreover, neither the agency nor the administrative
judge made any reference to the appellant’s possible “right to compete” VEOA claim
under 5 U.S.C. §§ 3304(f)(1) and 3330a(a)(1)(B).