UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EDWARD GLOSPIE,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

NY-3443-16-0121-I-1

DATE: July 28, 2016

THIS ORDER IS NONPRECEDENTIAL1

Edward Glospie, North Arlington, New Jersey, pro se.

Lisa Lucas Kepple, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we 

DENY the petition for review concerning the appellant’s Veterans Employment 

Opportunities Act of 1998 (VEOA) claim and AFFIRM the initial decision’s 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

dismissal of that claim for lack of jurisdiction. We GRANT the petition for 

review under 5 C.F.R. § 1201.115 concerning the appellant’s employment 

practices claim and REMAND it for adjudication in accordance with this Order.

¶2 The agency advertised for a number of GS-1811-07/09 Criminal 

Investigator positions at various geographic locations under vacancy 

announcement DAL-INV-1466102-DEU-TY. Initial Appeal File (IAF), Tab 8

at 12-17. The announcement was open to all U.S. citizens. Id. at 12. The 

appellant, a 5-point preference-eligible veteran, applied for the vacancy by 

completing the Occupational Questionnaire, id. at 20-43, and submitting 

appropriate documentation. He was subsequently notified that he had received a

rating of 92 at the GS-7 level, less than the 95 needed, and that he lacked the 

minimum education and/or experience at the GS-9 level. Id. at 18. 

¶3 The appellant filed a Board appeal in which he alleged that the agency 

failed to apply his veterans’ preference. IAF, Tab 1 at 3, 5. He also alleged that 

the agency “illegally utilized an OPM hiring practice . . . .” Id. at 5. After 

acknowledging the appeal, IAF, Tab 2, the administrative judge issued an order 

explaining the limited bases under which the Board may consider an appeal of a 

nonselection, including when the applicant claims that the agency’s decision 

violated his veterans’ preference rights. IAF, Tab 4. In a subsequent order, the 

administrative judge informed the appellant of what is required to establish Board 

jurisdiction over a VEOA appeal, including, among other things, a showing that 

he exhausted his administrative remedy before the Department of Labor (DOL). 

IAF, Tab 5. In response, the appellant submitted proof of his military service, 

IAF, Tab 7 at 8, and he referred to the agency’s questionnaire, describing it as 

“prejudicial,” id. at 5. The appellant also moved to amend the proceedings to 

name the Office of Personnel Management (OPM) as a party, id. at 15-16, 

submitting a “complaint” naming both the agency and OPM as parties and

claiming that OPM developed and implemented regulations pertaining to the 

competitive service hiring procedures that prejudice and discriminate against 
3

veterans as to the assessment of their knowledge, skills, and abilities. Id. at 30. 

The agency moved for the dismissal of the appellant’s VEOA appeal for lack of 

jurisdiction on the basis that he had failed to exhaust his remedy before DOL. 

IAF, Tab 8. In response, the appellant repeated, inter alia, that he was 

challenging the questionnaire as prejudicing preference eligibles, and he pointed

out that he had named OPM as a party. IAF, Tab 9. 

¶4 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 1, 4. She found that, 

although directed to do so, the appellant failed to establish that he had exhausted 

his remedy before DOL. ID at 3‐4. 

¶5 On petition for review, the appellant again claims that the agency’s 

questionnaire discriminates against veterans and that the agency developed the 

process, in conjunction with OPM’s authority, over the competitive hiring 

process. Petition for Review (PFR) File, Tab 1 at 5-6. In response, the agency 

argues that the petition for review provides no basis to disturb the initial decision. 

PFR File, Tab 3 at 7. 

¶6 To establish jurisdiction over a VEOA appeal, an appellant must, among 

other things, prove that he exhausted his administrative remedy before DOL. 

Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139, ¶ 7 (2008). The 

appellant has not challenged the administrative judge’s finding that he failed to 

prove exhaustion. Accordingly, we agree that his VEOA appeal was properly 

dismissed for lack of jurisdiction. 2

 

¶7 As noted, however, the appellant argued below that the agency’s 

questionnaire did not fairly assess his prior experience because it was not 

experience in the Federal Government but rather military experience, and that 

 2 The appellant is not precluded from filing a new Board appeal on his VEOA claim if 

he cures the jurisdictional defect underlying the dismissal of the instant appeal by 

submitting evidence in his new appeal showing that exhaustion has now been 

completed. See Brown v. Department of the Navy, 102 M.S.P.R. 377, ¶ 14 (2006). 
4

OPM, as the agency charged with overseeing the Federal hiring process, failed to 

monitor the agency’s action, to the appellant’s detriment. IAF, Tabs 1, 7, 9. We 

construe the appellant’s claim as an employment practices appeal, challenging the 

manner in which the vacancy announcement measures applicants’ experience. 

See Jordan v. Office of Personnel Management, 108 M.S.P.R. 119, ¶ 19 (2008) 

(explaining that the Board construes pro se pleadings liberally). 

¶8 An applicant for employment who believes that an employment practice 

applied to him by OPM violates a basic requirement 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. 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). 

¶9 The term “employment practices,” which includes the development and use 

of examinations, qualifications, standards, tests, and other measurement 

instruments, 5 C.F.R. § 300.101, is to be construed broadly. Dowd v. United 

States, 713 F.2d 720, 723-24 (Fed. Cir. 1983). Although an individual agency 

action or decision that is not a rule or practice of some kind does not qualify as an 

employment practice, an agency’s misapplication of a valid OPM requirement 

may constitute an employment practice. Prewitt v. Merit Systems Protection 

Board, 133 F.3d 885, 887 (Fed. Cir. 1998). 

¶10 As stated previously, the second jurisdictional prong is a nonfrivolous 

allegation that the employment practice violated a basic requirement for 

employment practices set forth in 5 C.F.R. § 300.103. That regulation requires 

that employment practices be based on a “job analysis to identify: (1) The basic 

duties and responsibilities; (2) The knowledges, skills, and abilities required to 
5

perform the duties and responsibilities; and (3) The factors that are important in 

evaluating candidates.” 5 C.F.R. § 300.103(a). There also must be a “rational 

relationship between performance in the position to be filled . . . and the 

employment practice used.” 5 C.F.R. § 300.103(b)(1). And, an employment 

practice must not discriminate on the basis of, inter alia, any nonmerit‐based 

factor. 5 C.F.R. § 300.103(c). 

¶11 In seeking to include OPM as a party to this action, the appellant asserted

that OPM oversees the competitive hiring practice, suggesting that other agencies 

who advertise for Criminal Investigators also measure applicants’ experience in a 

way that prejudices veterans. IAF, Tab 1 at 5, Tab 7. As such, the appellant has 

alleged, but not established, OPM involvement in the agency’s hiring practice

that arguably violates one of the “basic requirements” set forth at 5 C.F.R. 

§ 300.103. 

¶12 The appellant raised this claim below, but the administrative judge failed to 

notify him of his jurisdictional burden over such a claim. IAF, Tabs 2, 4‐5. As 

with any other basis for jurisdiction, when an appellant raises an employment 

practices claim, an administrative judge must inform him with specificity of his 

burden of proving his claim, his burden of going forward with the evidence, and 

the types of evidence necessary to make a nonfrivolous allegation. Parker v. 

Department of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 7 (2007). 

Moreover, neither the agency’s filings nor the initial decision notified the 

appellant of what is required to establish jurisdiction over his claim. Id., ¶ 8. 
6

Therefore, this case must be remanded. 3 Burroughs v. Department of the Army, 

116 M.S.P.R. 292, ¶ 21 (2011). 

ORDER

¶13 For the reasons discussed above, we remand this case to the field office for 

further adjudication of the appellant’s employment practices claim in accordance 

with this Remand Order. 4

 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board

 3 In his petition for review, the appellant refers to 5 U.S.C. § 1204(f)(1)(B), which 

provides that the Board has original jurisdiction to review rules and regulations issued 

by OPM, and he cites Jones v. Office of Personnel Management, 107 M.S.P.R. 115

(2007), wherein the Board denied an appellant’s request for such review. PFR File,

Tab 1 at 7. The appellant has not explained the statutory reference and the only 

regulation he has cited is 29 C.F.R. § 1607.14(B)(2)2), a regulation promulgated not by 

OPM, but rather by the Equal Employment Opportunity Commission, that deals with 

Technical Standards for Validity Studies. Under the circumstances, we find that the 

appellant is not attempting to file a petition for regulation review and that his assertions 

are more properly considered in the nature of an employment practices claim. 

4 The appellant learned the results of his application on December 10, 2015, IAF, Tab 1

at 7-8, and filed his Board appeal on January 9, 2016, id. at 1. Therefore, his appeal 

was timely filed. 5 C.F.R. § 1201.22(b).