UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK R. MACPHERSON, DOCKET NUMBER
Appellant, SF-300A-14-0385-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: September 1, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mark R. MacPherson, Honolulu, Hawaii, pro se.
Emily Urban, Esquire, San Francisco, California, 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 this 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
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the 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, and based on the following
points and authorities, 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 An applicant for employment who believes that an employment practice
applied to him by the Office of Personnel Management (OPM) violates a basic
requirement set forth in 5 C.F.R. § 300.103 is entitled to appeal to the Board.
5 C.F.R. § 300.104(a). 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 second, 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.
E.g., Meeker v. Merit Systems Protection Board, 319 F.3d 1368, 1373 (Fed. Cir.
2003); Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008). In
certain circumstances, OPM’s involvement in an agency’s selection process may
be sufficient to characterize a nonselection action by that agency as a practice
applied by OPM. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 888
(Fed. Cir. 1998). For that prerequisite to be satisfied, however, OPM’s
involvement in the selection process must be significant. Id.
3
¶3 Additionally, in order for the Board to have jurisdiction over an
employment practices appeal, it is “necessary that the challenged employment
practice have been applied to the applicant as the basis for the adverse hiring
decision.” Dow v. General Services Administration, 590 F.3d 1338, 1342 (Fed.
Cir. 2010); see 5 C.F.R. § 300.104(a) (an applicant is entitled to relief from an
unlawful employment practice that “was applied to him”). An agency’s
misapplication of a valid OPM requirement may constitute an employment
practice, but an individual agency action or decision that is not a rule or practice
of some kind does not qualify as an employment practice. E.g., Sauser v.
Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 7 (2010).
¶4 In this employment practices appeal, the appellant alleged that the work
product knowledge and skill assessment (WPKSA) and scoring formula that the
agency used in the selection process for merit promotion announcement
13CE-CIN0108-1811-13-RB violated the basic requirements for employment
practices set forth in 5 C.F.R. § 300.103. Initial Appeal File (IAF), Tab 1 at 5.
The appellant also argued that the agency misapplied the requirements of 5 C.F.R.
§ 335.103. Id. He waived his right to a hearing, the administrative judge set the
close of the record, and the parties each made their final submissions. IAF,
Tabs 13, 30-34.
¶5 In her initial decision, the administrative judge found that both the WPKSA
and the scoring formula used by the agency were employment practices as defined
by 5 C.F.R. § 300.101, but that an agency task force, not OPM, developed and
implemented the selection process at issue. IAF, Tab 35, Initial Decision (ID)
at 4-7. Although the agency reviewed OPM’s analyses and guidance in creating
the standards that it applied to the appellant, the administrative judge found that
the appellant’s challenge involved the agency’s independent actions, not the OPM
source materials. ID at 7. The administrative judge also found that, contrary to
the appellant’s assertion, OPM was not significantly involved in Phase 1 of the
assessment process, in that the actions that the appellant cited as demonstrating
4
OPM’s involvement all related merely to the agency’s use of OPM’s USAJOBS
website to post the vacancy and accept the applications as part of the first phase
of the hiring process. ID at 8. Moreover, the administrative judge noted that,
because the appellant did not challenge any portion of Phase 1, OPM’s
involvement in that phase would not establish its involvement in the employment
practices challenged in this appeal, i.e., the WPKSA in Phase 2, and the agency’s
alleged failure to consider the appellant’s performance appraisals and incentive
awards. ID at 8-9. The administrative judge similarly found that the Board
lacked jurisdiction over the appellant’s allegations that the WPKSA and scoring
formula were not based on a job analysis or professionally developed as required
by 5 C.F.R. § 300.103, because the agency, not OPM, applied those employment
practices to him. The administrative judge, therefore, found these allegations
must be addressed in the agency grievance process. ID at 10 (citing 5 C.F.R.
§ 300.104(c)).
¶6 Regarding the appellant’s claim that the agency misapplied 5 C.F.R.
§ 335.103, Requirement 3, because it failed to give due weight to performance
evaluations and incentive awards in the merit promotion process, the
administrative judge determined that the agency did not apply that employment
practice to the appellant because such materials were considered following
Phase 3 of the assessment process, which occurred after the agency eliminated the
appellant from consideration. ID at 9-12. Likewise, the administrative judge
found no jurisdiction over the appellant’s claim that the agency’s choice to
include candidates rated Highly Qualified in addition to those deemed Best
Qualified in Phase 3 of the assessment process violated 5 C.F.R. § 335.103,
Requirement 4, which essentially requires agency promotion programs to identify
the best qualified candidates for selection. ID at 12. Again, the administrative
judge noted that the agency did so after it had eliminated the appellant, and the
administrative judge found no evidence to indicate OPM’s involvement during
this phase of the selection process. ID at 12-13. Finally, the administrative judge
5
found that, in any event, the Board lacked jurisdiction over the appellant’s claims
that the agency engaged in harmful procedural error in the selection process and
committed a prohibited personnel practice. Id.
¶7 In his petition for review, the appellant reiterates his argument that the
agency failed to ensure that the methods it used to evaluate candidates for
promotion were consistent with 5 C.F.R. § 300.103. Petition for Review (PFR)
File, Tab 1 at 6-10. He argues that the WPKSA and scoring formula were based
on OPM work products such that it was sufficiently involved in administering
those employment practices. Id. at 7. He again contends that the agency
misapplied a valid employment practice, explaining that the agency did not base
the Investigative Techniques competency for the position at issue on a job
analysis as required by 5 C.F.R. § 300.103(a). Id. The appellant also reiterates
his argument that the agency failed to give due weight to performance appraisals
and incentive awards in the ranking and selection of candidates for the position at
issue in this appeal and disagrees with the administrative judge’s finding that
OPM’s involvement in those actions was not sufficiently significant to
characterize either action as an employment practice administered by OPM. Id. at
10-24. The agency has responded in opposition. PFR File, Tab 3.
¶8 We agree with the administrative judge that the appellant has failed to
identify an employment practice that OPM is involved in administering or an
OPM requirement that the agency misapplied, 2 and we find that she properly
dismissed the appeal for lack of jurisdiction. Whether an agency relied upon a
professionally developed job analysis is a basic requirement of a valid
2
In this context, the Board has found that the “misapplication of a valid OPM
requirement” does not mean that the agency inaccurately evaluated a candidate using a
valid OPM requirement. Rather, it means that the very application of the requirement
to the candidate violated one of the basic requisites of 5 C.F.R. § 300.103. In other
words, “misapplication of a valid OPM requirement” refers to the applicability of a
requirement, rather than to the method of its application. See, e.g., Scott v. Department
of Justice, 105 M.S.P.R. 482, ¶ 11 (2007).
6
employment practice, such as a scoring formula or qualification standard for a
position series. See Chadwell v. Merit Systems Protection Board, 629 F.3d 1306,
1311 (Fed. Cir. 2010); Mapstone v. Department of the Interior, 106 M.S.P.R. 691,
¶¶ 13-14 (2007), modified on other grounds by 110 M.S.P.R. 122, ¶ 7 (2008).
Here, the appellant has only asserted that the agency failed to use a professional
job analysis to develop one criteria for the promotional opportunity at issue. PFR
File, Tab 1 at 7. Because the appellant has failed to allege that OPM was
involved in developing or administering the alleged invalid criteria used by the
agency, or that the agency misapplied an employment practice in the course of its
merit promotion determination, his appeal is best characterized as a challenge to
the agency’s individualized hiring decisions. See, e.g., Prewitt, 133 F.3d
at 887-88 (OPM not involved in the establishment of allegedly improper
minimum qualifications); cf. Sauser, 113 M.S.P.R. 403, ¶ 8 (the agency’s
assessment of the appellant’s qualifications was based on OPM’s general engineer
qualification standards and was considered an employment practice); Mapstone,
106 M.S.P.R. 691, ¶ 14 (the agency’s decision that the appellant was not qualified
was based on OPM’s qualification standards and education requirements for the
position series, thus constituting an employment practice). The appellant’s
citation to Azdell v. Office of Personnel Management, 87 M.S.P.R. 133 (2000),
and to Morris v. Office of Personnel Management, 14 M.S.P.R. 578 (1983), do
not assist him in establishing jurisdiction over his appeal because, unlike the
instant matter, OPM was directly involved in the challenged employment practice
in both of the cited cases. PFR File, Tab 1 at 8, 12.
¶9 As for the appellant’s claim that the agency failed to give due weight to his
performance evaluations and incentive awards, the appellant’s own argument
explicitly states that the agency took these actions, not OPM. PFR File, Tab 1
at 11. Moreover, because the record indicates that the agency utilized this factor
after it had eliminated the appellant, ID at 10-11, even if the appellant had
somehow established OPM’s involvement, the appellant fails to show that the
7
agency applied the employment practice to him. The same is true for the
appellant’s contention that the agency improperly considered those applicants
found to be “Highly Qualified” in addition to those deemed “Best Qualified,”
e.g., PFR File, Tab 1 at 15, and the appellant also fails to identify a valid OPM
requirement that the agency misapplied to him.
¶10 Accordingly, we concur with the administrative judge that the appellant
failed to establish Board jurisdiction over his employment practices appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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.
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
8
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 your appeal to
the 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.