Case: 21-2151 Document: 28 Page: 1 Filed: 03/11/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LORETTA JEAN ALFORD,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2151
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-21-0448-I-1.
______________________
Decided: March 11, 2022
______________________
LORETTA JEAN ALFORD, Dale City, VA, pro se.
ELIZABETH WARD FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before DYK, SCHALL, and TARANTO, Circuit Judges.
Case: 21-2151 Document: 28 Page: 2 Filed: 03/11/2022
2 ALFORD v. MSPB
PER CURIAM.
Loretta Jean Alford petitions for review of a final deci-
sion of the Merit Systems Protection Board (“MSPB” or
“Board”). The Board dismissed Ms. Alford’s appeal of her
non-selection for a position with the Committee for Pur-
chase from People who are Blind and Severely Handi-
capped (“AbilityOne Commission”) for lack of jurisdiction.
We affirm.
BACKGROUND
In February 2021, Ms. Alford applied for the position of
Oversight and Compliance Specialist with the AbilityOne
Commission. Ms. Alford had previously worked in the po-
sition before being removed for misconduct in July 2014.
Although Ms. Alford initially received an automated re-
sponse notifying her that she was “tentatively eligible” for
the position, she was never selected for an interview. S.A.
2. 1 In May 2021, she was advised that she had not been
selected for the position.
Ms. Alford appealed her non-selection to the MSPB, ar-
guing that it had jurisdiction over her appeal because her
non-selection was an act of whistleblower reprisal for vari-
ous disclosures Ms. Alford had made to the U.S. House of
Representatives Committee on Oversight and Reform and
other government agencies between 2012 and May 2021.
Ms. Alford also asserted the MSPB had jurisdiction over
her appeal as an employment practices claim. In an initial
decision issued on June 30, 2021, an Administrative Judge
(“AJ”) dismissed Ms. Alford’s appeal for lack of jurisdiction.
With respect to Ms. Alford’s employment practices
claim, the AJ found that Ms. Alford had “not asserted that
1 References to the Supplemental Appendix (“S.A.”)
are to the appendix filed with the MSPB’s Informal Brief,
ECF No. 18.
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ALFORD v. MSPB 3
any specific [Office of Personnel Management (“OPM”)] ex-
amination, qualification standard, test or measurement in-
strument resulted in, or was connected to, her
nonselection,” nor had she otherwise identified any “basic
requirement” that was missing from a standard that OPM
had used in determining not to select her. S.A. 7. Regard-
ing her whistleblower reprisal claim, the AJ explained that
the Board could exercise jurisdiction over that claim only if
Ms. Alford had exhausted her administrative remedies be-
fore the Office of Special Council (“OSC”). See S.A. 8; 5
U.S.C. § 1214(a)(3). The AJ concluded that Ms. Alford had
“provide[d] no indication that she ha[d] filed a complaint
with OSC alleging whistleblower retaliation with respect
to her nonselection, or any other action.” S.A. 9.
Because neither party filed a petition for review with
the full Board, the AJ’s initial decision became the final de-
cision of the MSPB on August 4, 2021. Ms. Alford petitions
for review to this court. We have jurisdiction to review a
final Board decision pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the MSPB has jurisdiction over an appeal is a
question of law that we review de novo. See Bryant v. Merit
Sys. Prot. Bd., 878 F.3d 1320, 1325 (Fed. Cir. 2017). The
MSPB may exercise jurisdiction over administrative ap-
peals only when authorized by a “law, rule, or regulation.”
5 U.S.C. § 7701(a). We agree with the AJ that Ms. Alford
has failed to establish that the Board has jurisdiction over
her appeal.
Ms. Alford argues that her non-selection for employ-
ment by OPM was the result of improper “employment
practices.” We have held that “an unsuccessful candidate
for a federal civil service position generally has no right to
appeal his or her non-selection to the [B]oard.” Ricci v.
Merit Sys. Prot. Bd., 953 F.3d 753, 757 (Fed. Cir. 2020). An
exception to that rule exists when an applicant believes
that OPM applied an improper “employment practice.”
Case: 21-2151 Document: 28 Page: 4 Filed: 03/11/2022
4 ALFORD v. MSPB
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 887 (Fed. Cir.
1998); 5 C.F.R. § 300.104(a). An employment practice is
defined by regulation as any practice that affects “the re-
cruitment, measurement, ranking, and selection of individ-
uals for initial appointment and competitive promotion in
the competitive service.” 5 C.F.R. § 300.101. Although
“‘employment practice’ is . . . construed broadly,” it does not
encompass “an individual agency action or decision that is
not made pursuant to a rule or practice,” such as an irreg-
ularity in the selection process. Prewitt, 133 F.3d at 887.
Here, Ms. Alford has not alleged any improper employ-
ment practice that OPM allegedly applied to her applica-
tion. Although her appeal to the Board cited to basic
requirements for federal employment practices, see 5
C.F.R. § 300.103, she failed to identify which of the basic
requirements OPM allegedly violated by not selecting her
for employment.
Ms. Alford’s whistleblower reprisal argument is simi-
larly flawed. The Board has jurisdiction over an individ-
ual-right-of-action appeal under the Whistleblower
Protection Act, 5 U.S.C. § 1221, only “if the appellant has
exhausted her administrative remedies before the OSC.”
Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed.
Cir. 2020) (citations omitted). An appellant may establish
that she exhausted administrative remedies by showing
that she filed a request for corrective action with OSC and
that OSC has either notified her that it has terminated the
investigation into her request or that 120 days have passed
without notice from OSC of termination of its investigation.
5 U.S.C. § 1214(a)(3)(A)(i), (B). Here, Ms. Alford has made
no showing that she filed a request for corrective action
with OSC, much less that she has satisfied the require-
ments for administrative exhaustion.
We therefore conclude that the AJ’s dismissal of Ms.
Alford’s appeal for lack of jurisdiction was proper. We have
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ALFORD v. MSPB 5
considered Ms. Alford’s other arguments, but they are not
relevant to the issue of jurisdiction.
AFFIRMED
COSTS
No costs.