N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

PAUL G. MIRANNE,
Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2015

- 3128

______________________

Petition for review of the Merit Systems Protection
Board in No. AT

- 3443

- 13

- 0527 -B- 1.

______________________

Decided: December 1 6 , 2015

______________________

P AUL G. M IRANNE

, Pensacola, FL, pro se.

L INDSEY S CHRECKENGOST , Office of the General Cou nsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before D YK

, B RYSON

, and W ALLACH

, Circuit Judges.MIRANNE v. MSPB 2

P ER C URIAM

Mr. Paul G. Miranne seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) dismis sing his appeal for lack of jurisdiction. Because we find that Mr. Miranne’s complaint does not sufficiently allege that an employment pra ctice administered by the Office of Personnel Management (“OPM”) violated one of the basic requirements of 5 C.F.R. § 300.103, we affirm

.
B ACKGROUND

Mr. Miranne is a Personnel Psychologist with the D epartment of the Navy (“ a gency ”). In December 2008, Mr. Miranne applied for a Supervisory Personnel Psy chologist position with the Nava l Education and Training Profe ssional Development and Technology Center. However, Mr. Miranne was not selected for the position

. Mr. Miranne appealed to the Board on April 1 5 , 2013.
He alleged that the a gency used invalid selection criteria (criteria used to rate and rank candidate s ) to favor or disfavor specific types of candidates.

After some preliminary proceedings, an MSPB admi nistrative judge dismissed the appeal for lack of jurisdi ction because he found that Mr. Miranne had not made a
“non -frivolous” allegation that an employment practice administered by OPM violated one of the “ basic requir ements ” for employment practices set forth in OPM regul ations. R.A. 10. The Board affirmed, finding that Mr. Miranne “failed to identify an employment practice that OPM administers or an OPM requirement that the age ncy misapplied.” R.A. 3. Mr. Miranne now petitions for
review.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a) (9). We review the Board’s jurisdiction, a que stion of law, de novo, but review factual determinationsMIRANNE v. MSPB 3

relating to jurisdiction for substantial evidence. Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998)

.
D ISCUSSION

The sole issue before us is whether the Board correc tly held that it lacked jurisdiction over Mr. Miranne’s appeal. “An agency’s failure to select an applicant for a vacant position is generally not appealable to the Board, ” including non

- selections for promotion. See Pre witt v. Merit Sys. Prot. Bd. , 133 F.3d 885, 886 (Fed. Cir. 1998) ; Ellison v. Merit Sys. Prot. Bd. , 7 F.3d 1031, 1034 (Fed. Cir. 1993). However, the Board does have limited juri sdiction to hear appeals relating to non -selection that allege “that an employm ent practice which was applied to him or her by the Office of Personnel Management vi olates a basic requirement ” of merit promotion

. 5 C.F.R. § 300.104 These basic requirements are that emplo yment practices must be based on (a) a job analysis ident ifyin g the basic duties and qualifications for the position being filled, that are (b) relevant to the performance in that position, and (c) not discriminatory. 5 C.F.R. § 300.103; see also Vesser v. OPM , 29 F.3d 600, 603 (Fed. Cir. 1994); Dowd v. United States , 713 F.3d 720, 722 n.9 (Fed. Cir. 1983).

Mr. Miranne has the burden of proving the Board’s jurisdiction by a preponderance of the evidence

. 5 C.F.R. § 1201.56 (c)(2)

. Because Mr. Miranne is challenging employment practices, he must demo nstrate: “ fir st, the appeal must concern an ‘employment practice [admini stered by OPM], and second, the employment practice must be alleged to have violated one of the ‘ basic r equirements ’ for employment practices s et forth in 5 C.F.R. § 300.103.” Meeker v. Merit Sys. Prot. Bd. , 319 F.3d 1368, 1373 (Fed. Cir. 2003) ; Prewitt , 133 F.3d at 887

. Mr. Miranne alleges that the a gency’s selection crit eria used in hiring for the position for which he was notMIRANNE v. MSPB 4

hired were not in line with the basic requirements laid out in the regulations. The regulations require that “[e]ach employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis” identifying the duties of the position and the skills required

, that “[t]h ere shall be a rational relatio nship between performance in the position to be filled

. . . and the employment practice used

, ” and that the “employment practice must not discriminate” on non

merit

- based factors. 5 C.F.R. § 300 .103. Mr. Miranne alleges that a job analysis was not undertaken for the position being filled and that, as a result, there is little
relevance between the selection criteria used for the position and the requirements of the position. See id . He further alleges that the s election criteria were “gerr ymandered” to improve the outcome of a specific applicant or group of applicants, and were discriminatory

. No where in his jurisdictional pleadings does Mr. Miranne point to
OPM’s involvement with the development of the selectio n criteria for this particular provision, nor any specific OPM rule or regulation that was applied to him.

We find that Mr. Miranne has not established the Board’s jurisdiction. To maintain jurisdiction, “OPM’s involvement in an agency’s selection process may be
sufficient to characterize a non

- selection action by that agency as a practice applied by OPM. For that prerequ isite to be satisfied, however, OPM’s involvement in the
selec tion process must be significant.” Prewitt , 133 F.3d

at 888 ; see also Dow d v. Office of Pers. Mgmt., Dep't of Army , 745 F.2d 650, 651 (Fed. Cir. 1984) (affirming the Board’s dismissal for lack of jurisdiction since “OPM played no part in the ineligible rating given to [ the ] petitioner” and thus “OPM had not applied any emplo yme nt practice to [ the ] petitioner”).

Mr. Miranne argues that “an agency’s misapplication of a valid OPM requirement may constitute an appealableMIRANNE v. MSPB 5

employment practices action.” See, e.g. Mapstone v. Dep't of the Interior , No. AT

- 3443

- 07

- 0076 -B- 1, 2008 WL 4435025 (M.S.P.B. Sept. 26, 2008) . In other words, Mr. Miranne argues that direct OPM involvement is not required and that because the a gency’s actions allegedly
violate d a regulation developed by OPM, OPM is sufficiently involved to satisfy this prong of the jurisdictional requirement.

Although we agree that OPM need not directly be i nvolved, some sort of OPM involvement is necessary so as to not render that requirement a nullity. All of our cases Mr. Miranne cites for this proposition involve an agency’s application of a specific OPM policy alleged to be in viol ation of the basic requirement. See Prewitt , 133 F.3d at 887 (listing cases) ;. We have found jurisdiction only when the appellant showed that OPM mad e the “ pivotal dec ision” that resulted in non -selection, see Maule v. Merit Sys. Prot. Bd. , 812 F.2d 1396, 1398 (Fed. Cir. 1987) , or that OPM’s promulgation of a rule was the “direct cause” of the agency’s action, see Lackhouse v. Merit Sys. Prote ction Bd. , 773 F.2d 313, 315 n.3 (Fed. Cir. 1985)

. None
involve d an a gency’s alleged failure to apply an OPM regulation

. We agree with the Board that an alleged failure to implement an OPM regulation does not demo nstrate OPM involvement or establish Board jurisdiction. 1

AFFIRMED

C OSTS

No costs.

1 In addition, because we find that the Board co rrectly concluded that it did not have jurisdiction absent OPM involvement, we find no error in the Boa rd’s denial of discovery related to the allegedly defective employment practices.