NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

PAUL G. MIRANNE,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3128

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-3443-13-0527-B-1.

______________________ 

Decided: December 16, 2015

______________________ 

 PAUL G. MIRANNE, Pensacola, FL, pro se.

 LINDSEY SCHRECKENGOST, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before DYK, BRYSON, and WALLACH, Circuit Judges.
2 MIRANNE v. MSPB

PER CURIAM

Mr. Paul G. Miranne seeks review of a final decision 

of the Merit Systems Protection Board (“MSPB”) dismissing his appeal for lack of jurisdiction. Because we find 

that Mr. Miranne’s complaint does not sufficiently allege 

that an employment practice administered by the Office of 

Personnel Management (“OPM”) violated one of the basic 

requirements of 5 C.F.R. § 300.103, we affirm. 

BACKGROUND

Mr. Miranne is a Personnel Psychologist with the Department of the Navy (“agency”). In December 2008, Mr. 

Miranne applied for a Supervisory Personnel Psychologist 

position with the Naval Education and Training Professional Development and Technology Center. However, 

Mr. Miranne was not selected for the position. 

Mr. Miranne appealed to the Board on April 15, 2013. 

He alleged that the agency used invalid selection criteria 

(criteria used to rate and rank candidates) to favor or 

disfavor specific types of candidates. 

After some preliminary proceedings, an MSPB administrative judge dismissed the appeal for lack of jurisdiction 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 requirements” for employment practices set forth in OPM regulations. 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 agency 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 question of law, de novo, but review factual determinations 
MIRANNE v. MSPB 3

relating to jurisdiction for substantial evidence. Bolton v. 

Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). 

DISCUSSION

The sole issue before us is whether the Board correctly 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 Prewitt 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 jurisdiction to hear appeals relating to non-selection that 

allege “that an employment practice which was applied to 

him or her by the Office of Personnel Management violates a basic requirement” of merit promotion. 5 C.F.R. 

§ 300.104 These basic requirements are that employment practices must be based on (a) a job analysis identifying 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 demonstrate: “first, the 

appeal must concern an ‘employment practice [administered by OPM], and second, the employment practice 

must be alleged to have violated one of the ‘basic requirements’ for employment practices set 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 agency’s selection criteria used in hiring for the position for which he was not 
4 MIRANNE v. MSPB

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]here shall be a rational relationship between performance in the position to be filled 

. . . and the employment practice used,” and that the 

“employment practice must not discriminate” on nonmerit-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 selection criteria were “gerrymandered” to improve the outcome of a specific applicant 

or group of applicants, and were discriminatory. Nowhere 

in his jurisdictional pleadings does Mr. Miranne point to 

OPM’s involvement with the development of the selection 

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 prerequisite to be satisfied, however, OPM’s involvement in the 

selection process must be significant.” Prewitt, 133 F.3d 

at 888; see also Dowd 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 employment practice to [the] petitioner”). 

Mr. Miranne argues that “an agency’s misapplication 

of a valid OPM requirement may constitute an appealable 
MIRANNE 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 agency’s actions allegedly 

violated 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 involved, 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 violation of the basic requirement. See Prewitt, 133 F.3d at

887 (listing cases);. We have found jurisdiction only when 

the appellant showed that OPM made the “pivotal decision” 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. Protection Bd., 773 F.2d 313, 315 n.3 (Fed. Cir. 1985). None 

involved an agency’s alleged failure to apply an OPM 

regulation. We agree with the Board that an alleged 

failure to implement an OPM regulation does not demonstrate OPM involvement or establish Board jurisdiction.1

AFFIRMED

COSTS

No costs.

1 In addition, because we find that the Board correctly concluded that it did not have jurisdiction absent 

OPM involvement, we find no error in the Board’s denial 

of discovery related to the allegedly defective employment 

practices.