UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

VALERIE L. SOUTHALL, Appellant,

v.
DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF

- 3443

- 16

- 0137

- I

- 1

DATE: August 9, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Valerie L. Southall , Carmichael, California, pro se. Daniel T. Raposa , Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition fo r review of the initial decision, which dismissed her 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 errone ous 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* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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 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. Title 5 of the C ode 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 applied for the GS

- 5 position of Legal Assistant at the

agency . Initial Appeal File (IAF), Tab 1. On November 9, 2015, s he received notice that she had been selected; however, the following day, Human Resources personnel notified her that the selection was an error. Id . The appellant appealed the agency’s cancellation /nonselection action. Id . The administrative judge
fo und that the appellant failed to show that the appointment authority had actually
selected her . IAF, Tab 17, Initial Decision (ID) at 5. The administrative judge also found that, even if an appointment authority selected her, the appellant failed
to show that she took any action accepting the position or that she ever performed
the duties of the position. ID at 5. Thus, she found no error in the
cancellation/nonselection action
, and she dismissed the appeal for lack of
Board jurisdiction

. ¶3 In her petit ion for review, the appellant stated that she has filed a complaint with the Office of Special Counsel (OSC) and asks that the Board not issue a
decision until OSC issues a decision or closes out her case . Petition for Review File, Tab 1. ¶4 T he Board’s ju risdiction is limited to those matters over which it has been given jurisdic tion by law, rule, or regulation

. M addox v. Merit Systems
Protection Board
, 759 F. 2d 9 , 10 (Fed. Cir. 1985)

. To establish Board3

jurisdiction over the cancellation of a promotion or appointment, the appella nt must show that: (1) the promotion or appointment was approved by an authorized official aware that she was making th e promotion or appointment; (2) the appellant took some action denoting acceptance of the pr omotion or appointment; and (3) the promotion or appointment wa s not revoked before the appellant performed in the position. Marrero v. Department of Veterans Affairs , 100 M.S.P.R. 424 , ¶ 7 (2005), overruled on other grounds by Deida v

. Department of the Navy
, 110 M.S.P.R. 408 , ¶ 16 (2009). ¶5 Here, we agree with the administrative judge that the appellant failed to
show that the appointment was approved by an authorized official

. Also, the administrative judge properly found that the appellant failed to show that she took

any action denoting acceptance of the position, and /or that she ever performed the duties of the position. T he record r eflects that the administrative judge considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility. As a result, we find no basis to disturb the administrative judge’s determination that the Bo ard lacks jurisdiction over this appeal. ID at 3

‐ 5; e .g. , Crosby v. U.S. Postal Service
, 74 M.S.P.R. 98 , 105

‐ 06 (1997) (finding no reason to disturb the administrative judge’ s findings where she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health & Human
Services , 33 M .S.P.R. 357 , 359 (1987) (same). ¶6 Despite the general lack of Board jurisdiction over a non selection, an appellant may appeal a non selection for a position by other statutory means, such as through an individual right of action (IRA) appeal

. Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327 , ¶ 5 (2007). An individual who files a complaint with OSC alleging retaliation for whistleblowing may file an IRA appeal wi th the Board upon receiving notice from OSC that it has terminated its investigation, or upon the expiration of 1 20 days after the complaint was filed if4

OSC has not notified the individual that it will seek corrective action on her
behalf. 5 U.S.C. § 1214 (a)(3); Kochanoff v. Department of the Treasury , 98 M.S.P.R. 405 , ¶ 6 (2005). Here, the appellant has shown th at she filed a complaint with OSC on January 12, 2016 , that 120 days have passed since she filed her complaint, and that sh e wishes to proceed with an IRA a ppeal. ¶7 Accordingly, we forward the appellant’s allegation of whistleblower reprisal to the Western Regional Office for docketing and adjudication as an IRA appeal.

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 request to the

co urt at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your requ est 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 cour t 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. 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’s5

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 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. ______________________________ Jennifer Everling Acting Clerk of the Board