UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ALFOUS GLENN FERRIER , JR., Appellant,

v.
DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER AT

- 3443

- 15

- 0614

- I

- 1

DATE: February 5, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Alfous Glenn Ferrier, Jr.
, Jacksonville, Florida, pro se.

Rebecca Gervasi , Fort Sam Houston, Texas, 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 . Generally, we grant petitions such 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 regula tion or the erroneous application of the law to the facts of the case; the

* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 ha s been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).2

administrative 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 th e 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, 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 T he appellant , a Quality Assurance Specialist for the Defense Contract Management Agency in St. Augustine, Florida, appealed his nonselection for multiple Quality A ssurance Specialist positions in other locations, alleging that
his non selections were the result o f favoritism. Initial Appeal File (IAF), Tab 1. The administrative judge informed the appellant that the Board generally does not have jurisdiction over no n selection claims, explained the limited exceptions to this general rule , and ordered the appellant to file evidence and argument establishing jurisdiction over this appeal. IAF, Tab 2 at 2. The appellant did not respond to this order
, and the administra tive judge dismissed the appeal, without holding a hearing, for lack of jurisdiction. IAF, Tab 6 , Initial Decision (ID)

. ¶3 The appellant has filed a petition for review arguing that t he agency
committed a prohibited personnel practice by not selecting him f or nine positions
over a 2

- year period. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the petition. PFR File, Tab 3. ¶4 As found by the administrative judge
, the Board does not have jurisdiction to hear an appeal of a nonselection. ID at 2 ; s ee Mello v. Department of Energy , 20 M.S.P.R. 45 , 47 (1984). The appellant claims that his nonselections are the
result of a prohibited personnel practice in violation of 5 U.S.C. § 2302 (b)(9). PFR File, Tab 1 at 3. Absent an otherwise appealable action, the appellant’s3

claim of a prohibited personn el practice does not provide an independent basis for finding Board jurisdiction. Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 11 (2006). ¶5 The appellant states that he has filed a prohibited personnel practices complaint with the Office of Special Counsel (OSC)

. PFR File, Tab 1 at 3. The appellant alleges he was told by an OSC employee that his prohibited pe rsonnel practices complaint would be difficult to prove. IAF, Tab 1 at 5. If the Special Counsel determines that the Board should take an action to discipline an employee alleged to have committed a prohibited personnel practice, the Special Counsel must file a written complaint with th e Board

. 5 C.F.R. § 1201.123

. In his petition for review, the appellant cites to decisions issued under the Board’s original jurisdict ion as the result of a n OSC complaint

. PFR File, Tab 1 at 3

- 4. An employee, like the appellant, may seek corrective action by filing an individual right of action appeal under 5 U.S.C. § 1221 for a prohibited personnel practice described in 5 U.S.C. § 2302 (b)(8) after exhausting his remedies with
OSC. Clemente v. Department of Homeland Security
, 101 M.S.P.R. 519 , ¶ 9 (2006). The appellant is alleging that the agency violated 5 U.S.C. § 2302 (b)(6), PFR File, Tab 1 at 3, which is not a basis for an individual right of action appeal

. Based on the foregoing, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Plac e, N.W.

Washington, DC 204394

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 P ersonnel Management
, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you sh ould 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 States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional information 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. If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federa l5

Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board