UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE HART, DOCKET NUMBER
Appellant, DA-3443-15-0472-I-1
v.
DEPARTMENT OF DEFENSE, DATE: January 21, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Renee Hart, Battle Creek, Michigan, pro se.
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 her nonselection 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
the facts of the case; the administrative judge’s rulings during either the course of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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 by this Final Order to find that the Board does not have
jurisdiction over an employment practices claim, we AFFIRM the initial decision.
¶2 The appellant is a GS-11 Contract Specialist for the Defense Logistics
Agency. Initial Appeal File (IAF), Tab 1 at 7. In April 2015, she applied for a
GS-12 Contract Administrator position at the Defense Contract Management
Agency (the agency). Id. at 8-15. On July 1, 2015, the agency informed the
appellant that she had not been selected for the position because she had
withdrawn herself from further consideration. Id. at 14-15.
¶3 The appellant subsequently filed an appeal with the Board and requested a
hearing. Id. at 1-6. She disputed that she had withdrawn herself from further
consideration and asserted that her nonselection was unlawful and discriminatory.
Id. at 5. In an acknowledgment order, the administrative judge informed the
appellant that the Board may not have jurisdiction over her nonselection appeal.
IAF, Tab 2 at 2. She advised the appellant that the Board generally lacks the
authority to address a nonselection claim except where the unsuccessful candidate
alleges that the agency’s decision was made in retaliation for whistleblowing, the
product of discrimination based on uniformed service, or in violation of her
veterans’ preference rights. Id. She ordered the appellant to file evidence and
argument on the jurisdictional issues. Id. After receiving no response from the
appellant, the administrative judge issued an order to show cause further
explaining the appellant’s burden of proving the Board’s jurisdiction over her
3
appeal and ordering her to show cause why her appeal should not be dismissed for
lack of jurisdiction. IAF, Tab 4 at 1-2. She advised the appellant that her failure
to respond to the order would result in the dismissal of the appeal. Id. at 2-3.
The appellant did not respond. IAF, Tab 5, Initial Decision (ID) at 3.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. ID at 1, 3-4.
Specifically, she found that the Board lacks jurisdiction over the appellant’s
nonselection for the Contract Administrator position, and also found that the
Board lacked jurisdiction over any claims of harmful error, prohibited personnel
practices, or discrimination absent an otherwise appealable action. ID at 3-4.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
¶6 In her petition for review, the appellant states that she did not intend to
ignore the administrative judge’s orders, but was out of the office for surgery and
recovery and then had difficulty accessing her e-Appeal account. Id. at 3-4. She
also disputes the administrative judge’s finding that the Board lacks jurisdiction
over her appeal and asserts that the Board has jurisdiction over unfair and
2
discriminatory employment practices. Id. at 5. Specifically, she alleges that the
2
To the extent that the appellant is asserting an employment practices claim under
5 C.F.R. § 300.104(a), we modify the initial decision to find that she has failed to
nonfrivolously allege that the Board has jurisdiction over this claim because she
does not allege that the Office of Personnel Management (OPM) was involved in her
nonselection, a prerequisite for such a claim. See, e.g., Prewitt v. Merit Systems
Protection Board, 133 F.3d 885, 887-88 (Fed. Cir. 1998) (finding that the appellant
failed to establish the Board’s jurisdiction over his employment practices claim because
he did not show OPM’s “significant” involvement in the selection process). Instead,
she alleges that the agency improperly advised OPM that she had withdrawn her
application. IAF, Tab 1 at 5, 14-15. Ordinarily, 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, however, the appellant did not assert an employment practices claim that would
have required the administrative judge to have provided her with such notice. Cf.
Parker v. Department of Housing and Urban Development, 106 M.S.P.R. 329, ¶¶ 7-9
(2007) (remanding the appellant’s appeal for jurisdictional notice on and adjudication
4
agency discriminated against her based on her age and failed to: afford her the
priority consideration to which she claims she was entitled; prove that she was
fairly rated for employment; and respond to her request for feedback on the
decision process. Id. at 4-5. In support of her arguments, she submits evidence
of a prior inquiry that she made with the agency into the reason why she was not
considered for a different Contract Administrator position. Id. at 6-10. She also
submits letters from the agency dated March 18, 2014, advising her of her
entitlement to priority consideration for future Contract Specialist and Contract
Administrator positions. Id. at 11-13.
¶7 We find that the appellant’s arguments on review do not provide a reason to
disturb the initial decision. The appellant has the burden of proving the Board’s
jurisdiction by a preponderance of the evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).
Generally, if an appellant makes a nonfrivolous allegation 4 of Board jurisdiction
over an appeal, she is entitled to a jurisdictional hearing. See Garcia v.
Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006)
(en banc). 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). The Board generally lacks
jurisdiction over an employee’s nonselection for a position. Becker v.
Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). Despite the
general lack of jurisdiction, however, an employee may appeal her nonselection
by other statutory means, such as under the Veterans Employment Opportunities
Act, under the Uniformed Services Employment and Reemployment Rights Act,
of his employment practices claim where the appellant explicitly raised this claim
below).
3
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).
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
5
or through an individual right of action appeal if she claims retaliation for
whistleblowing. See id., ¶¶ 5-6, 9, 12 (addressing a nonselection for a
promotion claim).
¶8 Here, the appellant has indicated that she is not eligible for veterans’
preference and has not claimed any military service or whistleblowing. IAF,
Tab 1 at 1, 4-5. Further, the appellant’s claims of harmful error, age
discrimination, and prohibited personnel practices do not alter the conclusion that
the Board lacks jurisdiction over her nonselection. See Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that the Board lacks jurisdiction
over an appellant’s harmful error claim absent an appealable underlying action);
Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012)
(finding that the Board does not have jurisdiction over discrimination claims
absent an otherwise appealable action); Wren v. Department of the Army,
2 M.S.P.R. 1, 2 (1980) (finding 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 (D.C. Cir. 1982).
¶9 For these reasons, we agree with the administrative judge’s finding that the
Board lacks jurisdiction over the appellant’s nonselection appeal and we affirm
the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
6
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 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 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.
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
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.