UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALFOUS GLENN FERRIER, JR.,

Appellant,

v.

DEPARTMENT OF DEFENSE,

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THIS FINAL ORDER IS NONPRECEDENTIAL*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 

regulation 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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
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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 the 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 The appellant, a Quality Assurance Specialist for the Defense Contract 

Management Agency in St. Augustine, Florida, appealed his nonselection for 

multiple Quality Assurance Specialist positions in other locations, alleging that 

his nonselections were the result of favoritism. Initial Appeal File (IAF), Tab 1. 

The administrative judge informed the appellant that the Board generally does not 

have jurisdiction over nonselection 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 administrative 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 the agency 

committed a prohibited personnel practice by not selecting him for 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; see 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’s 
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claim of a prohibited personnel 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 personnel 

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 the Board. 5 C.F.R. § 1201.123. In 

his petition for review, the appellant cites to decisions issued under the Board’s 

original jurisdiction as the result of an 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 APPELLANT 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 request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439
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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 Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should 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 Federal 
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Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board