UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN D. O’BRIEN,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DA-300A-16-0525-I-1

DATE: March 24, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

John D. O’Brien, Waxahachie, Texas, pro se.

Jennifer Merkle, Grand Prairie, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his employment practices and suitability action appeal for lack of 

jurisdiction. Generally, we grant petitions such as this one only in the following 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
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circumstances: 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 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).

BACKGROUND

¶2 The appellant, a GS-14 Section Chief with the agency’s Bureau of Prisons, 

applied for four GS-15 Warden vacancies between 2014 and 2016. Initial Appeal 

File (IAF), Tab 1 at 1, 5; Tab 4 at 4; Tab 5 at 16-18. Following notification that 

he did not meet the qualifications for the last of those announcements, 

MSS-2016-0009, the appellant filed a request for secondary review of his 

disqualification, which the agency affirmed on the basis that he lacked the 

necessary specialized experience for the position. IAF, Tab 4 at 10-19. 

¶3 The appellant timely appealed to the Board the agency’s decision not to 

select him, identifying his nonselection as a harmful procedural error and/or a 

prohibited personnel practice. IAF, Tab 1 at 5. The administrative judge issued 

an acknowledgment order in which he notified the appellant that the Board 

generally does not have jurisdiction over nonselection claims and identified the 

exceptions when it does, such as employment practices appeals under 5 C.F.R. 
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§ 300.103 or negative suitability determinations under 5 C.F.R. § 731.501. IAF, 

Tab 2 at 2-7. 

¶4 Without holding the appellant’s requested hearing, the administrative judge 

issued an initial decision dismissing the appeal, concluding that the appellant 

failed to nonfrivously allege Board jurisdiction over the appeal of his 

nonselection as either an employment practices claim or a negative suitability 

action. IAF, Tab 10, Initial Decision (ID). The administrative judge also found 

that the Board lacked independent jurisdiction over the appellant’s harmful 

procedural error and prohibited personnel practices claims. ID at 6-8.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On December 8, 2016, the appellant filed a request to reopen an appeal 

dismissed without prejudice, which the Board docketed as an untimely petition 

for review. Petition for Review (PFR) File, Tab 1. The agency has responded to 

the petition for review.3 PFR File, Tab 2. In his petition for review, the appellant 

challenges the merits of the findings below, arguing that the administrative judge 

incorrectly characterized his appeal as a nonselection claim and erred in 

determining that the agency was not misapplying qualification standards of the 

Office of Personnel Management (OPM) when it repeatedly found he was not 

qualified for the Warden position. PFR File, Tab 1 at 4-5. 

¶6 As the administrative judge correctly noted, the Board has jurisdiction over 

an employment practices appeal under 5 C.F.R. § 300.104(a) when the following

conditions are met: (1) the appeal concerns an employment practice that OPM is 

involved in administering; and (2) the appellant makes a nonfrivolous allegation 

that the employment practice violated one of the “basic requirements” for 

 

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The agency argues that the appellant’s petition for review was untimely filed by 1 day. 

PFR File, Tab 2 at 5-6. Because we dismiss this appeal on jurisdictional grounds, we 

need not address the question of the timeliness of the petition for review. Alston v. 

Social Security Administration, 95 M.S.P.R. 252, ¶ 19 (2003), aff’d, 134 F. App’x 440

(Fed. Cir. 2005).
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employment practices set forth in 5 C.F.R. § 300.103. Sauser v. Department of 

Veterans Affairs, 113 M.S.P.R. 403, ¶ 6 (2010); ID at 4. 

¶7 On review, the appellant does not claim that any employment practice 

administered by OPM violated the “basic requirements” for employment practices 

set forth in 5 C.F.R. § 300.103. PFR File, Tab 1 at 4-5; see Mapstone v. 

Department of the Interior, 106 M.S.P.R. 691, ¶¶ 11-15 (2007), modified by 

Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008). Nor does 

he allege that that the qualification requirements were not “rationally related” to 

the Warden position. See Sauser, 113 M.S.P.R. 403, ¶¶ 8-10 (finding that an 

appellant established jurisdiction over an employment practices appeal based on 

an allegation that an agency misapplied OPM qualification standards because he 

alleged that the standards were not rationally related to performance in the 

position to be filled).

¶8 Instead, the appellant claims only that the agency “misapplied” an existing 

OPM standard by “selectively” and “systematically and willfully” interpreting the 

qualification standards in a manner that resulted in the qualification of only 

individuals who previously have performed in the Associate Warden position. 

PFR File, Tab 1 at 4-5; IAF, Tab 4 at 15. The appellant asserts that, by the 

agency narrowly interpreting OPM’s qualification standards, qualified applicants 

were denied the opportunity to compete for positions. PFR File, Tab 1 at 5. 

¶9 The Board has held that an agency’s “misapplication” of a valid OPM 

requirement also may constitute a colorable employment practices claim. Sauser,

113 M.S.P.R. 403, ¶ 7 (citing Prewitt v. Merit Systems Protection Board, 

133 F.3d 885, 887 (Fed. Cir. 1998)); Holse v. Department of Agriculture, 

97 M.S.P.R. 624, ¶ 6 (2004). However, to constitute a misapplication of a valid 

OPM requirement, OPM must have been involved in a “significant way” in the 

administration of the qualification standard misapplied by the agency. Prewitt, 

133 F.3d at 888; Mapstone, 106 M.S.P.R. 691, ¶ 14. In Dowd v. Office of 

Personnel Management, 745 F.2d 650, 651 (Fed. Cir. 1984), for example, the 
5

appellant challenged an agency finding that he was ineligible for a position based 

on the hiring agency’s application of OPM’s time-in-grade regulations, and our 

reviewing court affirmed the Board’s dismissal of the appeal for lack of 

jurisdiction because “OPM played no part in the ineligible rating given to [the] 

petitioner,” and thus “OPM had not applied any employment practice to [the] 

petitioner.” Likewise, in Manno v. Department of Justice, 85 M.S.P.R. 696, ¶ 8 

(2000), the Board found that it lacked jurisdiction over an employment practices 

appeal when the appellant failed to show that OPM had any involvement in the 

alleged mishandling of his application for promotion. 

¶10 In the instant case, nothing in the record indicates that OPM was at all 

involved in administering or reviewing the additional specialized qualification 

requirements that the agency considered in evaluating applicants for the Warden 

position. Instead, the appellant is attempting to challenge how the agency 

evaluated the specialized supervisory/managerial experience he provided on his 

application and the fact that his experience was ultimately assessed to be 

insufficiently broad to meet the agency’s needs for the Warden position. PFR 

File, Tab 1 at 4-5; IAF, Tab 1 at 7-9. Beyond his conclusory allegation that the 

agency was too selective in applying OPM’s requirements to “exclude qualified 

applicants,” the appellant does not explain how the agency’s determination that 

his experience was insufficient, or the fact that it identified alternative work 

experience that would, in fact, meet its specialized experience requirements, 

violated any of the basic requirements of 5 C.F.R. § 300.103. PFR File, Tab 1

at 4; IAF, Tab 4 at 6-7, 17-18. Such an argument does not constitute a claim that 

the agency “misapplied” otherwise valid OPM requirements and is rather more

accurately characterized as a challenge of the appellant’s individual qualification 

determination, over which the Board does not have jurisdiction. See 

Richardson v. Department of Defense, 78 M.S.P.R. 58, 61 (1998) (finding that an 

alleged error in rating and handling an individual’s employment application did 

not constitute an employment practice); see also Prewitt, 133 F.3d at 887 (stating 
6

that an individual agency action or decision that is not made pursuant to or part of 

a rule or practice of some kind does not qualify as an “employment practice”). 

Whether by consequence or by design, the agency’s application of its 

qualification standards in a manner that deemed only individuals with previous 

experience as Associate Wardens qualified for the Warden position does not 

constitute an appealable employment practices claim. PFR File, Tab 1 at 5.

¶11 Finally, to the extent the appellant’s claim that he is being “denied the 

opportunity to compete” for the Warden position is intended as a challenge to the 

administrative judge’s determination that he failed to nonfrivoluosly allege he 

was subject to a negative suitability action, we find that argument is also without 

merit. Id. As the administrative judge correctly noted, the Board does have 

jurisdiction over a “suitability action,” which includes a cancellation of 

eligibility, a removal, a cancellation of reinstatement eligibility, and a debarment. 

ID at 7; see Kazan v. Department of Justice, 112 M.S.P.R. 390, ¶ 6 (2009). 

However, a nonselection for a specific position is not a “suitability action,” even 

if it is based on the criteria for making suitability determinations set forth at 

5 C.F.R. § 731.202. Kazan, 112 M.S.P.R. 390, ¶ 6; see 5 C.F.R. 

§§ 731.203(a)-(b), 731.501(a). Beyond finding him unqualified under the listed 

announcements, the appellant does not allege that the agency took any broader 

action regarding his eligibility, such as canceling any other eligibilities on othe r 

existing competitive registers or barring him from consideration for future 

announcements. See Kazan, 112 M.S.P.R. 390, ¶ 6. As a result, we agree with 

the administrative judge’s determination that the appellant has failed to 

nonfrivolously allege that his nonselection was an appealable suitability action . 

Id.; 5 C.F.R. § 731.203(b).

¶12 Accordingly, we deny the petition for review and affirm the initial decision 

dismissing the appeal for lack of jurisdiction. 
7

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 
9

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
10

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
11

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board