UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VALERIE L. SOUTHALL,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

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THIS FINAL ORDER IS NONPRECEDENTIAL*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 for 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 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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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). 
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 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 applied for the GS-5 position of Legal Assistant at the 

agency. Initial Appeal File (IAF), Tab 1. On November 9, 2015, she 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 

found 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 petition 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 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board 
3

jurisdiction over the cancellation of a promotion or appointment, the appellant 

must show that: (1) the promotion or appointment was approved by an authorized 

official aware that she was making the promotion or appointment; (2) the 

appellant took some action denoting acceptance of the promotion or appointment; 

and (3) the promotion or appointment was 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. The record reflects 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 Board 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 nonselection, an 

appellant may appeal a nonselection 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 with the Board upon receiving notice from OSC that it has terminated its 

investigation, or upon the expiration of 120 days after the complaint was filed if 
4

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 that she 

filed a complaint with OSC on January 12, 2016, that 120 days have passed since 

she filed her complaint, and that she wishes to proceed with an IRA appeal.

¶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 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

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. 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 
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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 accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board