NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3132

ATANACIO G. SAMBRANO, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

Atanacio G. Sambrano , of Lindenhurst, Illinois, pro se. Joyce G. Friedman , Attorney, Office of the Gener al Counsel, United States Merit Systems Protection Board, of Washington, DC, for responden t. With her on the brief were B. Chad Bungard , General Counsel, Rosa M. Koppel , Deputy General Counsel, and Sara B. Rearden , Acting Associate General Counsel. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3132

ATANACIO G. SAMBRANO, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________________ DECIDED: September 6, 2007

__________________________

Before NEWMAN and MOORE, Circuit Judges , and FARNAN,* District Judge

. NEWMAN, Circuit Judge

.

Mr. Atanacio G. Sambrano appeals the decisi on of the Merit Systems Protection Board (Docket No. CH3443060625-I-1) dismissing his appeal for lack of jurisdiction. Because failure to promote to a higher grade or select for a vacancy at a higher grade is

_______________ * Hon. Joseph J. Farnan, Jr., District J udge, United States District Court for the District of Delaware, sitting by designation.2007-3132 2 not an appealable action, the B oard had no authority to give independent consideration to his claims of discrimination based on race, nat ional origin, or age. The dismissal is affirmed

. BACKGROUND Mr. Sambrano is a licensed Professional Engineer, employed as Civil Engineer, grade GS-11, with the Naval Fac ilities Engineering Command in Gr eat Lakes, Illinois. In February 2006 he filed a complaint with the Office of Special Counsel (OSC), charging that the Navy had engaged in prohibited personnel pr actices including age, race, and national origin discrimination, by deny ing his repeated requests for prom otion to a GS-12 position, while promoting other engineers w ho were younger and less qualified. On March 8, 2006 the OSC informed Mr. Sambrano that he had not supported the charge of violati on of 5 U.S.C. ' 2302(b)(6) (prohibition against granting "any preference or advantage not authorized by law"), and t hat any violati on of 5 U.S.C. ' 2302(b)(9) (prohibition against taking or failure to take any personnel action against an employee for filing an EEO complaint) should be filed with the EEOC. T he OSC concluded its investigation, and denied reconsideration. Mr. Sambrano appealed to the MSPB, raising issues of prohibited personnel practices under 5 C.F.R. ' 1201.151 and ' 1201.153, violation of the Civil Rights Act of 1964, violation of the Age Discrim ination in Employment Act of 1967, and violation of the Whistleblower Protection Act. Mr. Sambrano argued that t he Navy's repeated denial of a promotion to GS-12 despite more than twenty years of service as a licensed Professional Engineer, and the Navy's promotion of less senior and unlicensed engineers to grade GS-12, are prima facie prohibited personnel practices. He did not press the whistleblower aspect. The MSPB2007-3132 3 administrative judge dismissed the appeal on the ground that failu re to promote is not an appealable action, and that discrimination clai ms are not appealable to the Board unless they accompany an otherwise appealable action. The full Board declined review, and this appeal followed. DISCUSSION The issue of the Board's jurisdiction is a question of law, and receives plenary review. King v. Briggs , 83 F.3d 1384, 1387 (Fed. Cir. 1996). See 5 C.F.R. ' 1201.56(a)(2) (the petitioner must establis h the Board's jurisdiction). The Board's jurisdiction is limited to ac tions designated as appealable to the Board "under any law, rule, or regulation." 5 U.S.C. ' 7701(a). Mr. Sambrano argues that the Navy's actions constitute prohibit ed personnel practices under 5 C.F.R. ' 1201.151 and ' 1201.153, and that the Navy acted in violation of the Civil Rights and Age Discrimination statutes. The Navy responds that the only employment practice at issue is the failure to promote, which is not an appeal able action. A non-promotion or non-selection, even if allegedly based on a prohibited pers onnel practice under 5 U.S.C. ' 2302(b) (listing categories of prohibited pers onnel practices in federal em ployment) is generally not appealable to the Board. See Cruz v. Dep't of the Navy , 934 F.2d 1240, 1245 (Fed. Cir. 1991) ( en banc ) (the asserted violation of 5 U.S.C. ' 2302(b) is not an independent source of Board jurisdiction); Prewitt v. MSPB , 133 F.3d 885, 886 (Fed. Cir . 1998) ("An agency's failure to select an applicant for a vacant position is generally not appealable to the Board."). Mr. Sambrano argues that since he is entitl ed to the grade increase by qualification, experience, and tenure as a licensed Professi onal Engineer who has served the federal2007-3132 4 government for more than twenty years, the Na vy and OPM must demonstrate that its rules and regulations authorize denial of the increase. He points out that the Board has authority to review OPM rules and regulations, see 5 U.S.C. ' 1204(f)(1), and that the Board committed reversible error by fa iling to consider his evidence of discrimination. However, absent an appealable employment action, the Board has no authority to review such evidence. If discrimination is charged, the MSPB correctly stated that the proper forum is the EEOC. Although claims fo r discrimination because of age and for civil rights violation "should be construed not narrowly and tec hnically, but broadly and liberally," Hill v. Dep't of Air Force , 796 F.2d 1469, 1472 (Fed. Cir. 1986), unl ess the employment action is appealable, the asserted reasons for the action ar e not within the Board's review authority. Mr. Sambrano also complains of the Navy' s lack of "standard procedure as to how selecting officials choose to notify applicants of job interviews." Lack of standard procedure in the selection process is not an "employm ent practice" within t he meaning of 5 C.F.R. ' 300.104(a). See Prewitt , 133 F.3d at 887 (holding that i rregularity such as racial misidentification in the selection process is not "an application of a specific rule, provision, or policy by the agency"). Again, since failure to select or prom ote is not an appealable action, the Board cannot review the reasons for such failure. Each party shall bear its costs.