NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 

2008-3013 

DEV IYER, 

Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

Respondent. 

 Dev Iyer, of Havertown, Pennsylvania, pro se. 

 Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With her on 

the brief were Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant 

Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3013 

DEV IYER, 

 Petitioner, 

v. 

DEPARTMENT OF THE TREASURY, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in PH3443070016-I-1 

__________________________ 

DECIDED: February 11, 2008 

 __________________________ 

Before RADER, LINN, and PROST, Circuit Judges. 

PER CURIAM. 

Dev Iyer petitions for review of an adverse decision of the Merit Systems 

Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Iyer v. 

Dep’t of the Treasury, PH3443070016-I-1 (M.S.P.B. Aug. 17, 2007). We find no 

reversible error by the Board and therefore affirm. 

BACKGROUND 

Mr. Iyer applied for the position of internal revenue agent in Wilmington, 

Delaware, in response to a vacancy announcement by the Department of the Treasury, 

Internal Revenue Service (“the agency”). After an interview, the agency tentatively 

offered the position to Mr. Iyer, pending completion of preliminary inquiries, and 
scheduled him to attend orientation. Shortly before the scheduled orientation, the 

agency placed Mr. Iyer’s offer on hold due to issues arising during a background 

investigation. The agency requested that the Office of Personnel Management (“OPM”) 

make a suitability determination regarding Mr. Iyer. The OPM concluded that 

inconsistencies in Mr. Iyer’s application resulted from typographical errors, and that any 

misconduct during earlier employment occurred sufficiently prior to the present 

application to preclude adjudication by the OPM. 

Notwithstanding the OPM’s decision, communications within the agency indicate 

that the human resources department understood that the business unit did not want to 

hire Mr. Iyer. After consulting with employment specialists in the agency and the 

selecting official, the human resources department notified Mr. Iyer that the agency was 

no longer filling the vacancy in Wilmington. 

After Mr. Iyer challenged the agency’s decision by appealing to the Board on 

October 5, 2006, an administrative judge conducted a hearing. Mr. Iyer argued that the 

Board had jurisdiction because the agency had in fact based its action on suitability 

factors. Iyer v. Dep’t of the Treasury, PH3443070016-I-1, slip op. at 9–10 (M.S.P.B. 

Feb. 2, 2007) (“Initial Decision”). The administrative judge dismissed Mr. Iyer’s appeal 

for lack of jurisdiction, accepting the agency’s stated reason for nonselection—that it 

decided not to fill the position. Id. 

The Board subsequently denied Mr. Iyer’s petition for review making the 

administrative judge’s initial decision the final decision of the Board. Mr. Iyer timely filed 

a petition for review with this court. 

2008-3013 2
DISCUSSION 

We have jurisdiction over petitions for review of Board decisions under 28 U.S.C. 

§ 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. We must set aside 

agency actions, findings, or conclusions we find “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; or (3) unsupported by 

substantial evidence . . . .” 5 U.S.C. § 7703(c). 

The administrative judge considered all of the testimony at the hearing, 

concluding that Mr. Iyer failed to prove that the agency based its decision on suitability 

factors. Initial Decision, slip op. at 9. In reaching that conclusion, the administrative 

judge evaluated the credibility of the witnesses and found no reason to doubt the 

agency’s position. Id. This court will rarely disturb such evaluations, as credibility 

determinations are “virtually unreviewable” at this level. Hambsch v. Dep’t of the 

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The administrative judge accepted as 

true that the agency was prepared to go forward with an unsuitability determination, but 

did not have to do so when the selecting official decided not to fill the position. Initial 

Decision, slip op. at 10. With that understanding, the Board does not have jurisdiction 

based on the agency’s nonselection in this case. See Prewitt v. Merit Sys. Prot. Bd., 

133 F.3d 885, 886 (Fed. Cir. 1998) (stating nonselection is an issue generally not 

appealable to the Board). 

Mr. Iyer also seeks the Board’s jurisdiction based on a constructive suitability 

determination by the agency. Under that theory, however, he must demonstrate that 

the agency acted under delegated authority from the OPM to make the suitability 

2008-3013 3
2008-3013 4

determination. See Duggan v. Dep’t of the Interior, 98 M.S.P.R. 666, 669 (2005). The 

issue the agency believed could support unsuitability here was incorrect information 

provided by Mr. Iyer in his application. Initial Decision, slip op. at 3–4. Under the 

regulations, the OPM does not delegate authority for determinations in cases involving 

“material, intentional false statement or deception or fraud in examination or 

appointment.” 5 C.F.R. § 731.103(a). Therefore, Mr. Iyer has also failed to establish 

the Board’s jurisdiction under a constructive suitability theory. 

For the foregoing reasons, we affirm the decision of the Board. 

COSTS 

No costs.