UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SUSAN ELIZABETH DELM ERICO,

Appellant,

v.
DEPARTMENT OF THE NA VY,

Agency. DOCKET NUMBER AT

- 3443

- 17

- 0281

- I

- 1

DATE: May 30, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Susan Elizabeth Delmerico , Jacksonville, Florida, pro se. Thomas J. Tangi , Jacksonville, Florida, for the agency.

BEFORE Cathy A. Harris
, Vice Chairman Raymond A. Limon
, Member

FINAL ORDER ¶1 The appellant has filed a p etition for review of the initial decision, which dismissed her nonselection appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

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 av ailable 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 . Except as expressly MODIFIED by this Final Order to supplement the administrative judge’s analysis to explain why the Board lacks jurisdiction over this appeal based on regulations of the Office of Personnel Management (OPM) concerning suitability actions and employment practices , we AFFIRM the initial decision.

BACKGROUND ¶2 On October 17, 2016, the agency p osted a vacancy announcement for the position of Health System Specialist, GS

- 0671

- 09. Initial Appeal File (IAF),
Tab 5 at 8

- 12. The vacancy announcement noted that the position would be filled using the agency’s expedited hiring authority for designated healthcare professions

. Id

. at 8. Approximately 68 applicants were certified as qualified for the position , including the appellant. Id

. at 14

- 16. The candidate selected for the position was purportedly a veteran with a compensable
, service

- connected disability of 30% or more. Id

. at 14, 22, 34. The appellant does not have a veterans’ preference. IAF, Tab 1 at 1, Tab 5 at 1 5

. ¶3 Following her nonselection, the appellant filed this appeal with the Board. IAF, Tab 1. Among other things, she alleged t hat she was denied an interview or consideration for the position and that the agency wrongfully accounted for the candidates’ veterans’ preference in filling the vacancy. Id

. at 5.3

¶4 Without holding the appellant’s requested hearing, the administrative jud ge dismissed the appeal for lack of jurisdiction because the appellant failed to make a nonfrivolous allegation 2 of any matter appealable to the Board. IAF, Tab 6, Initial Decision (ID) at 1

- 3. The administrative judge explained that nonselection decisions are generally not actions that can be appealed to the Board. ID at 2

- 3. She further found that the appellant’s allegations of procedural error in the selection process were not a source of jurisdiction and that the appellant failed to
make a n onfrivolous allegation under OPM’s employment practices regulations
because any employment practice at issue was not administered by OPM. ID at 3. The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 3

- 4.

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 Generally, a nonselection is not the type of action that can be directly appealed to the Board

. Pridgen v. Office of Management and Budget
, 117 M.S.P.R. 665 , ¶ 6 (2012) ; see 5 U.S.C. §§ 7512 , 7513(d) . However, as the administrative j udge correctly informed the appellant, there are exceptions to this general rule. IAF, Tab 2 at 2

- 5. One exception is when an employment practice
that was applied to an employee b y OPM violates a basic requirement set forth at
5 C.F.R. § 300.103

. 5 C.F.R. § 300.104 (a). Further, OPM’s re g ulations provide
that a suit ability action, as defined at 5 C.F.R. § 731.203 , may also be appealed to

t he Board pursuant to 5 C.F.R. § 731.501 (a). 3

2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that is more than conclusory, is plausible on its face, and is material to the legal issues in the appeal. Id

. 3 The Nation al Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114

- 92, § 1086 (f)(9), 129 Stat. 726, 1010 (2015) , amended 5 U.S.C. § 7512 to state tha t chapter 75 of T itle 5 of the U.S. Code “does n ot apply to .

. . a suitability action taken by [OPM] und er regulations prescribed by [OPM], subject to the rules pres cribed by the President under [T itle 5] for the administration of the competitive service. ” 5 U.S.C.4

¶6 The appellant argues on review that the agency’s expedited hiring authority requires it to apply merit principles to assist in determini ng the best qualified
candidate and that the agency failed in this regard. PFR File, Tab 1 at 5

- 6

. She

seems to conten d that
, if the agency had appropriately screened its candidates, several of its interviewees would never have been interviewed for the position.
Id

. at 6

- 7

. She states that the hiring manager told her that she was the most qualified candidate for the pos ition and that he further said that the human
resources office instructed that only veterans were to be interviewed for the position, despite the c ertification of a number of non veterans. IAF, Tab 4

at 9

- 10; PFR File , Tab 1 at 7. The appellant argues tha t the agency ’s decision to
interview only veterans constituted a cancellation of every nonveteran’s eligibility for employment consideration, which she asserts i s a suitability action. PFR File, Tab 4 at 4. She also alleges that the agency’s actions violated the ba sic requirements set forth at 5 C.F.R. § 300.103

. Id

. The appellant has failed to nonfrivolously allege that OPM’s suitability regulations are a source of jurisdiction. ¶7 Regulations promulgated by OPM in 2008 state that a “suitability action,” as defined in those regulations, may be appealed to the Board. 5 C.F.R. § 731.501 (a). Suitability determinations examine whether “a person’s character
or conduct

. . . may have an impact on the integrity or efficiency of the service.”
5 C.F.R. § 731.101

. If an individual is deemed unsuitable for service based on
one or more of the factors enumerated in 5 C.F.R. § 731.202 (b), the acting agency may take a suitability action, which is defi ned as a removal, debarment, cancellation of eligibility, or cancellation of reinstatement eligibility. 5 C.F.R. § 731.203

. However, “[a] non

- selection, or cancellation of elig ibility for a

§ 7512 (F). Given our finding that the appellant’s nonselection was not a suitability action, we do not consider the effect, i f any, of section 7512(F) on this appeal, an issue that has not been addressed by either party.5

specific position .

. . is not a suitability action even if it is based on reasons set forth in § 731.202.” 5 C.F.R. § 731.203 (b). ¶8 Assuming arguendo that the agency direc ted that only veterans be interviewed for the position at issue in this case, we find that this does not
constitute a “cancellation of eligibility,” as that term is used at 5 C.F.R. § 731.20 3 (a), or any other suitability action. Moreover, even if it did constitute a cancellation of eligibility, it would only have been a cancellation of eligibility for a specific position, which is excluded from the definition of a suitability action. 5 C.F.R. § 731.203 (b). Accordingly, we find that the appellant failed to nonfrivolously allege that the agency took a suitability action against her. Therefore, we conclude that 5 C.F.R. § 731.501 (a) is not a source of jurisdiction
here.
The appellant has failed to nonfrivolously allege that her claim concerns an employment practice that OPM was involved in administering. ¶9 The Board has jurisdiction over an employment practices appeal when (1) an appellant ’s claim concerns an “employment practice” that OPM is invo lved in administering and (2) she has nonfrivolously allege d that the employment practice violated one of the “ba s ic requirements” set forth in 5 C.F.R. § 300.103

. Burroughs v. Department of the Army
, 116 M.S.P.R. 292 , ¶ 15 (2011)

. An “employment practice” is defined , in relevant part, as those practices “that affect
the recruitme nt, measurement, ranking, and selection of individuals for initial appointment and competitive promotion in the competitive service, ” and includes

“ the development and use of examinations, qualification standards, tests, and
other measurement instruments. ” 5 C.F.R. § 300.101

. However, a n individual agency action or decision that is not a rule or practice of some kind does not qualify as an employment practice , but an agency’s misapplicat ion of a valid OPM requirement may constitute an employment practice

. Sauser v. Department of Veterans Affairs , 113 M.S.P.R. 403 , ¶ 7 (2010).6

¶10 The administrative judge found that the appellant failed to nonfrivolously allege that any employment practice at issue in this appeal was administered by
OPM. 4 ID at 3. On review, the appellant has failed to explain why we should
reverse thi s finding, PFR File, Tabs 1, 4, and we see no reason to do so. Accordingly, assuming without finding that the appellant has nonfrivolously
al leged that her claim concerns employment practice s , we find that she has failed to nonfrivolously allege that OPM was involved in administering such employment practices. IAF, Tab 4 at 7, 9

- 10; PFR File, Tab 1 at 7 ; see Prewitt v. Merit Systems Protection Board
, 133 F.3d 885 , 888 (Fed. Cir. 1998) (finding that the appellant failed to allege that OPM was involved in the establishment of allegedly improper minimum qualifications for the position to which he applied). ¶11 T he appellant claims that t he agency erred in its application of its rules regarding the pass

- over of individuals with a veterans’ preference . PFR File,
Tab 1 at 7

- 8, Tab 4 at 10. T he pass

- over provisions set forth at 5 U.S.C

. § 3318 (c) have been found to constitute an emp loyment practice applied by OPM. Lackhouse v. Merit Systems Protection Board
, 734 F.2d 1471
, 1474 (Fed. Cir. 1984) . However, because the agency used a direct

- hiring authority pursuant to
10 U.S.C. § 1599c and 5 U.S.C. § 3304 (a)(3) , section 3318 was not directly applicable to the agency, and the agency instead only had to apply the “principles” of certain preferences for the hiring of veterans, such as the

pass

- over provisions set forth at 5 U.S.C. § 3318 (c)

. IAF, Tab 5 at 8, 20, 30

- 31. Further, unlike sub section 3318(c), the agency’s pass

- over procedures do not
involve OPM. IAF, Tab 5 at 22

. Thus, the appellant’s arguments do not constitute a nonfrivolous allegatio n that OPM was involved in administering any employment practice at issue in this appeal.

4 Alleged v iolations involving employment practices administered or required by an agency, rather than OPM, are actionable through the agency’s grievance process. 5 C.F.R. § 300.104 (c).7

The appellant’s remaining arguments do not change the jurisdictional determination. ¶12 The appellant also refers to one statement made by the agency’s representative as an admission by the agency that it violated the merit system principles , and s he refers to another statement as an admission by the agency that it is not standard for it to use acceptable employment practices. PFR File, Tab 1 at 5. The agency asserts tha t the first purported admission was merely a typographical error on its part

. PFR File, Tab 3 at 6; IAF, Tab 5 at 5. In the context of all the agency’s submissions in this appeal, we agree that this is an immaterial typographical error. Regarding the ot her purported admission, concerning the agency’s use of acceptable employment practices, we find that the appellant has mi sconstrued the pleading and the agency’s representative did not make the admission alleged by the appellant. IAF, Tab 5 at 6. ¶13 Finally, the appellant asserts that she was denied discovery in her appeal. PFR File, Tab 1 at 5

- 8. However, we find that the appellant has failed to demonstrate how the absence of discovery prejudiced her ability to make a nonfrivolous allegation on the dispositive jurisdictional issue. See Vores v. Department of the Army
, 109 M.S.P.R. 191 , ¶ 14 (2008), aff’d , 324 F. App’x 883 (Fe d. Cir. 2009); Sommers v. Department of Agriculture
, 62 M.S.P.R. 519 , 523 (1994); 5 C.F.R. § 1201.115 . Accordingly, we affirm the initial decision and dismiss the appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in thi s matter. 5 C.F.R. § 1201.113

. 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

5 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

forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal righ ts, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdic tion. 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 dism issal 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
sho uld 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 ad dress: 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 partic ular 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 11.9

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 a n 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. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file

w ith 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 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 the10

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 re view 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
b y 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
Enha ncement 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 disposition of allegations of a prohibited personne l 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 compete nt jurisdiction. 6 The court of appeals must receive your

6 The origi nal 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 on11

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 c ase.

July 7, 2018, permane ntly 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. 1510.12

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/C ourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board