UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRISTINA MILLER, DOCKET NUMBER
Appellant, DC-3443-16-0787-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 5, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cristina Miller, APO, AE, pro se.
Saegleo Santiago, APO, AE, for the agency.
William Blackston, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
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 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a GS-12 Industrial Engineer, filed an appeal in which she
alleged that she had interviewed for the position of Interdisciplinary Aerospace
Engineer, but was not selected, and that she subsequently learned that there were
various hiring irregularities in the selection process. Initial Appeal File (IAF),
Tab 1 at 5. Specifically, she alleged that the selecting official wished to select a
personal friend, and that the announcement was initially canceled because the
friend had not applied and needed more time to improve his qualifications so that
he could be selected, which he was. Id.
¶3 In acknowledging the appeal, the administrative judge explained that
nonselections generally are not appealable to the Board, except when the
appellant alleges that an employment practice applied by the Office of Personnel
Management (OPM) violated a basic requirement of 5 C.F.R. § 300.103, he has
received a negative suitability determination from the agency or OPM, or the
agency’s decision was made in retaliation for whistleblowing disclosures or
certain protected activities, the product of discrimination based on uniformed
service, or a violation of the candidate’s veterans’ preference. IAF, Tab 2. The
3
administrative judge ordered the appellant to file evidence and argument that the
action she sought to appeal was within the Board’s jurisdiction. Id. The
appellant did not respond. The agency moved that the appeal be dismissed for
lack of jurisdiction. 3 IAF, Tab 5 at 9-10, Tab 6 at 10-11.
¶4 In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. 4 IAF, Tab 7, Initial Decision (ID)
at 2, 5. He found that the appellant did not assert that she was subjected to an
action over which the Board has jurisdiction, and that she had not raised any other
matters that would bring her appeal within the Board’s jurisdiction. ID at 3 -5.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4,
and the appellant has filed a reply. PFR File, Tab 5.
¶6 On review, the appellant states that she did not, in her appeal, challenge her
nonselection, but rather the agency’s abuse of the hiring process based on the
selecting official’s desire to hire a personal friend. PFR File, Tab 1 at 4. Based
on the appellant’s narrative within her appeal, IAF, Tab 1 at 5, and all that she
submitted below, we find that the administrative judge reasonably construed that
the appellant was raising a claim of nonselection, and properly set out the limited
circumstances over which the Board may have jurisdiction over such a claim.
Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶ 15 (2011) (reviewing
a claim that an employment practice applied to the appellant by OPM violated a
basic requirement of 5 C.F.R. § 300.103); Alvarez v. Department of Homeland
Security, 112 M.S.P.R. 434, ¶ 7 (2009) (reviewing a claim that the appellant has
received a negative suitability determination from the agency or OPM); Becker v.
Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 15 (2007) (analyzing a
claim that the agency’s decision was in retaliation for whistleblowing disclosures
3
The agency also moved that the appeal be dismissed as untimely. IAF, Tab 6 at 11-12.
4
Based on this disposition, the administrative judge did not address the timeliness of
the appeal. ID at 1 n.1.
4
or certain protected activities, the product of discrimination based on uniformed
service, or a violation of the candidate’s veterans’ preference rights). As noted,
the appellant failed to respond to the administrative judge’s jurisdictional order.
¶7 The appellant has not established the Board’s jurisdiction over her claim
that the agency abused the hiring process. Notwithstanding her failure to reply to
the administrative judge’s jurisdictional order, we have considered whether her
claim could loosely be considered as one of an employment practice. She has not
alleged, however, nor does it appear, that OPM had any involvement in the
selection action at issue. Further, although the appellant alleges that the selecting
official considered nonmerit factors in making his selection, such a claim,
standing alone, does not provide the Board with jurisdiction over this matter.
Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining 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, 871-73 (D.C. Cir. 1982).
¶8 In sum, we find that the appellant has not shown error in the administrative
judge’s dismissal of this appeal for lack of jurisdiction. 5
5
With her petition, the appellant has submitted, presumably as new evidence,
Reference A, which purports to be a copy of her September 21, 2016 answers to the
agency’s interrogatories. PFR File, Tab 1 at 6-19. The record below closed on
September 3, 2016. IAF, Tab 2 at 6. The appellant asserts that she did not receive the
agency’s interrogatories until September 8, 2016. PFR File, Tab 5 at 5. Even if the
appellant’s answers could be considered as new evidence, such evidence is not material
because it does not bear on the dipositive jurisdictional issue of this appeal . Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board generally
will not grant a petition for review based on new evidence absent a showing that it is o f
sufficient weight to warrant an outcome different from that of the initial decision). The
appellant has also filed a Motion for Agency’s Response to Interrogatories. PFR File,
Tab 3. She claims that the agency failed to respond to the interrogatories she
propounded during the proceeding below, id. at 4, a claim the agency disputes. PFR
File, Tab 4 at 9 n.2. Even if we credit the appellant’s assertion in this regard, she
acknowledges that she did not initiate discovery until September 21, 2016, id., well
after September 8, 2016, the date by which the administrative judge indicated that
discovery must be initiated. IAF, Tab 2 at 7. Therefore, we deny the appellant’s
motion.
5
NOTICE OF APPEAL RIGHTS 6
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.
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:
6
Since the issuance of the initial decision in this matter, the Board may hav e 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
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 partic ular
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
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. ____ , 137 S. Ct. 1975 (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
7
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 th eir 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:
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
8
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. 7 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).
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.
7
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
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.