UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PATRICK A. LAKE,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

CH-1221-14-0645-W-1

DATE: April 10, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Patrick A. Lake, Omro, Wisconsin, pro se.

Shelli Moore, Huron, South Dakota, 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 the appeal for lack of jurisdiction. 2

 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 The first page of the initial decision states that the administrative judge denied the 

appellant’s request for corrective action. Initial Appeal File (IAF), Tab 12, Initial 

Decision (ID) at 1. The case, however, turned on her findings regarding the Board’s

jurisdiction. See ID at 4-13.
2

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 

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).

¶2 The appellant alleged that the agency improperly disqualified him from 

consideration for two vacancies; reassigned him from the GS-0457 series to the 

GS-0343 series; and retaliated against him for whistleblowing and for filing a 

grievance. IAF, Tab 1 at 2, 5. He also asserted an employment practices 

claim. Id. at 5. He is at present a Soil Conservationist, GS-0457-09, with the 

Natural Resources Conservation Service in Oshkosh, Wisconsin. IAF, Tab 11 at 

16. Because he did not request a hearing, the administrative judge adjudicated 

the appeal on the written record and dismissed it for lack of jurisdiction. IAF, 

Tab 1 at 1;ID at 13.

¶3 The agency selected the appellant for a position in the GS-0457 Soil 

Conservation series in 2003. IAF, Tab 11 at 12. In 2010, he applied for the 

position of District Conservationist, GS-0457-11, in Fond du Lac, 

Wisconsin. Id. The agency found him ineligible for the position because he did 

not meet the educational requirements. Id. The agency found he had completed 

only six of the twelve semester hours in the study of soils, crops or plant science 
3

required for the position. 3 Id. He was also not selected for another District 

Conservationist vacancy during the same time period. IAF, Tab 1 at 13. The 

appellant grieved the finding that he was ineligible for consideration, asking the 

agency to recognize his current level of education, experience, and qualifications 

as meeting the basic requirements for the GS-0457 series. See IAF, Tab 7 at 14. 

The Wisconsin State Conservationist denied his grievance and offered to pay for 

coursework that would allow him to qualify for the series if he did so within 1 

year. Id. at 14-15.

¶4 The appellant, however, did not enroll in the courses. IAF, Tab 11 at 12. 

Effective July 3, 2011, the agency reassigned him from his position in the 

GS-0457 series to a Program Analyst, GS-0343-09, position. Id. at 12, 20. He 

was also geographically reassigned to Appleton, Wisconsin, a few weeks 

later. Id. at 19.

¶5 In early 2012, the appellant submitted letters to the agency from two of his 

former college professors stating that the geography and geology classes he had 

completed in 1991 and 1992, respectively, included content on the physical, 

chemical, and biological properties of soil. See IAF, Tab 7, Subtab 6 at 4, Tab 11 

at 12. The agency thus reconsidered its assessment and determined he met the 

educational requirements for the GS-0457 series, and reassigned him to a Soil 

Conservationist, GS-0457-09, position in Appleton, Wisconsin, effective 

February 26, 2012. IAF, Tab 6 at 9, Tab 11 at 18.

 3 An individual can meet the qualifications for positions in the GS-0457 series with a 

degree in soil conservation or a related discipline, or with a combination of education 

and experience. Both methods of satisfying the requirement must include twelve

semester hours in a combination of soils and crops or plant science. Of the twelve

semester hours, a minimum of three semester hours must have been in the study of soils 

and three semester hours in the study of crops or plant science. See OPM Qualification 

Standards, Soil Conservation Series–0457, http://www.opm.gov/policy-dataoversight/classification-qualifications/general-schedule-qualification-standards/0400/

soil-conservation-series-0457/ (last visited Feb. 12, 2015).
4

¶6 The Chief of the Service issued a final decision regarding the appellant’s 

grievance on April 30, 2014. IAF, Tab 11 at 12-14. The Chief stated that the 

appellant had already received the relief he sought, namely to be returned to a 

position in the GS-0457 series, and he noted that the appellant had been given a 

written explanation of the agency’s action regarding its review of his position and 

the legitimate business reasons for reassigning him to the Appleton, Wisconsin 

office, as he had requested. Id. at 13. The Chief also afforded the appellant 1

year of priority consideration for any open merit promotion vacancy 

announcement in the Service at the same series, grade, promotion potential, and 

same geographic location as the District Conservationist, GS-0457-11 position for 

which he was found ineligible in 2010; rescission of all Standard Form 50s 

reflecting his occupational series as GS-0343; and information relating to the 

equal employment opportunity process for any potential discrimination or 

retaliation claim he might bring. Id. at 13-14.

¶7 The administrative judge found that the Board lacked jurisdiction over the 

appellant’s claim that the agency improperly failed to consider him for the two 

vacancies. ID at 4-5. The administrative judge also found that the appellant 

failed to show that the Board had jurisdiction over the matter as an employment 

practices appeal. ID at 5-9. The administrative judge further found that the 

Board lacked jurisdiction over the matter as an individual right of action (IRA) 

appeal and over any claim of reprisal brought under 5 U.S.C. § 2302(b)(9). ID at 

10-13. The administrative judge thus dismissed the appeal for lack of 

jurisdiction. ID at 13. Because she dismissed the appeal based on jurisdiction, 

she declined to make a finding as to whether it was timely filed.

4

 ID at 10.

 4 The agency argued that the appeal was untimely filed without good cause shown for 

the delay in filing. IAF, Tab 8 at 12. The appeal was filed on June 24, 2014, well 

beyond the filing period for any agency decision that might underlie an appeal. IAF, 

Tab 1 at 1; see 5 C.F.R. § 1201.22(b). The final determination letter from the Office of 

Special Counsel was dated August 30, 2011, and that the appellant was reassigned to a 
5

¶8 On review, the appellant alleges that the appeal “was premeditated for 

dismissal,” as well as wrongly decided based on “false jurisdictional 

presumptions.” Petition for Review (PFR) File, Tab 1 at 1. He also argues that 

the administrative judge sought to dismiss his appeal as untimely by considering 

it to be an IRA appeal rather than an employment practices appeal, even though 

he had clearly stated that he was appealing an employment practice pursuant to 

5 C.F.R. Part 300. PFR File, Tab 1 at 1.

¶9 Regarding the employment practices claim, the appellant asserts that the 

agency failed to follow the designated examining unit procedures of the Office of 

Personnel Management (OPM) when it found him unqualified for the GS-0457 

series and transferred him to the GS-0343 series. Id. at 3. He explains that he 

considers the agency’s reevaluation of his qualifications following his Fond du 

Lac nonselection as the basis for his claim, rather than the nonselection 

itself. Id. He argues that the administrative judge failed to recognize that there 

was no rational or relevant relationship between his demonstrated performance in 

a position in the GS-0457 series and the employment practice of disqualifying 

him based on educational qualifications alone. Id. at 3-4; see 5 C.F.R. 

§ 300.103(b)(1) (“There shall be a rational relationship between performance in 

the position to be filled . . . and the employment practice used.”). He further 

asserts that the agency should have considered his 7 years of successful work 

experience in the GS-0457 series in lieu of any educational credentials perceived 

to be missing. PFR File, Tab at 3.

¶10 The administrative judge, however, properly dismissed the appeal. 

Although the appeal form mentions whistleblowing, the appellant explained 

during the proceedings below that he was not pursuing an IRA appeal.

5

 See IAF, 

 

position in the GS-0457 series effective February 26, 2012. IAF, Tab 1 at 24, Tab 11 at 

18. The final decision for his grievance was issued April 30, 2014. IAF, Tab 11 at 12.

5 The appellant’s correspondence from the Office of Special Counsel pertains to a 

complaint he had filed under sections 2302(b)(2) and (b)(9). See IAF, Tab 1 at 21-24.
6

Tab 1 at 2, Tab 7 at 5. The appellant’s assertion that the administrative judge 

sought to “trick” him into focusing his appeal on whistleblower retaliation so that 

it could be dismissed as untimely is negated by the fact that the administrative 

judge carefully considered multiple jurisdictional theories and rendered a decision 

based on lack of jurisdiction.

¶11 As for the appellant’s assertion that he established the Board’s jurisdiction 

over an employment practices appeal, PFR File, Tab 1 at 3, such an appeal must 

concern an employment practice that OPM is involved in administering, and the 

employment practice in question must have violated one of the basic requirements 

set forth in 5 C.F.R. § 300.103, see Scott v. Department of Justice, 105 M.S.P.R. 

482, ¶ 10 (2007); 5 C.F.R. § 300.104(a). The appellant, who bore the burden of 

proof, see 5 C.F.R. § 1201.56(a)(2)(i), failed to set forth nonfrivolous allegations 

that the educational requirement is not rationally related to performance in a 

position in the GS-0457 occupational series, see 5 C.F.R. § 300.103(b). Instead, 

his pleadings have continued to stress the agency’s alleged improper failure to 

substitute job experience for educational requirements when it did not select him

for two GS-0457 vacancies during 2010. See, e.g., PFR File, Tab 1 at 1-2. 

Although an agency’s misapplication of a valid OPM requirement under 5 C.F.R. 

Part 300 may constitute an appealable employment practice, its alleged failure to 

consider all education and experience that the appellant deems relevant does not 

bring a nonselection appeal within the Board’s jurisdiction. See Banks v. 

Department of Agriculture, 59 M.S.P.R. 157, 160 (1993), aff’d, 26 F.3d 140 (Fed. 

Cir. 1994) (Table). In any event, the agency corrected any error it might have 

made when it considered information that the appellant submitted regarding his 

academic training and reversed its earlier finding that he did not meet the 

educational requirements for positions in the GS-0457 series. See IAF, Tab 11 

at 12. The appellant was transferred back into a position in the GS-0457 series,

and he obtained additional relief, including rescission of certain documents in his 

Official Personnel Folder and priority consideration for merit promotion to 
7

District Conservationist, GS-0457-11. Id. at 12-13. Accordingly, we affirm the 

administrative judge’s finding regarding the Board’s jurisdiction.

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.

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time. You may choose to request 

review of the Board’s decision in the United States Court of Appeals for the 

Federal Circuit or any other court of appeals of competent jurisdiction, but not 

both. Once you choose to seek review in one court of appeals, you may be 

precluded from seeking review in any other court.

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 
8

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information about the United States 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, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed 

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 

appellants before the Federal Circuit. The Merit Systems Protection Boardneither 

endorses the services provided by any attorney nor warrants that any attorney will 

accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board