UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRETT D. FLEISCH,

Appellant,

v.

NATIONAL SCIENCE 

FOUNDATION,

Agency.

DOCKET NUMBER

DC-3443-16-0313-I-1

DATE: December 6, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Brett D. Fleisch, Riverside, California, pro se.

Deanne Sobczak, Arlington, Virginia, 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 his employment practices 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See

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 was an employee of the University of California. Initial 

Appeal File (IAF), Tab 8 at 13. From February 13 to March 28, 2004, the 

appellant was appointed to the agency as an intermittent expert. IAF, Tab 3 at 11, 

14. The appointment was nonpermanent and in the excepted service. Id. From 

March 29, 2004, until September 30, 2007, he was detailed to the agency under 

the Intergovernmental Personnel Act (IPA). IAF, Tab 3 at 14, Tab 8 at 13-16. In 

January 2014, he applied for a position with the agency that was advertised under

vacancy announcement number ACI-2014-0001; however, the agency did not 

select him for the position. IAF, Tab 3 at 14, 47.

¶3 The appellant filed this appeal on January 23, 2016, and requested a 

hearing. IAF, Tab 1. He alleged that the agency denied him reinstatement when 

it did not select him for the position that he applied for in January 2014 and that 

the agency failed to recognize his prior Federal service as an IPA employee when 

considering his application. Id. at 4.
3

¶4 In an acknowledgment order, the administrative judge informed the 

appellant of his burden of proving the Board’s jurisdiction over his appeal. IAF, 

Tab 2 at 2-5. The administrative judge noted that, although the Board generally 

lacks jurisdiction over a nonselection, there are five exceptions whereby the 

Board has jurisdiction over a nonselection. Id. at 2-3. In particular, he apprised

the appellant of the requirements of showing Board jurisdiction over an alleged 

employment practice violation under 5 C.F.R. § 300.104(a). Id. at 3-5. He 

ordered the appellant to file evidence and argument on the jurisdictional issue. 

Id. at 5. The appellant responded that the Board had jurisdiction over his appeal 

because the agency and the Office of Personnel Management (OPM) had applied 

to him an employment practice in violation of 5 C.F.R. § 300.103 by using 

“faulty data” in his Standard Form 50 (SF-50) that “did not give proper credit for 

[F]ederal service time to IPAs.” IAF, Tab 3 at 4.

2

 He also raised a claim of 

discrimination against IPA employees. Id. The agency argued that the appeal 

should be dismissed for lack of jurisdiction and as untimely filed. IAF, Tab 8

at 4-8. The appellant filed a pleading in response that raised another 

discrimination claim. IAF, Tab 9. In a second order, the administrative judge 

explained to the appellant the relevant jurisdictional and timeliness issues. IAF, 

Tab 12. He ordered the appellant to respond to these issues. Id. at 3. The 

appellant’s response to the order was rejected as untimely filed. IAF, Tab 14.

¶5 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial 

Decision (ID) at 1, 6. Specifically, the administrative judge found that the 

agency put the appellant on notice that he would not be considered a Federal 

employee during the time he served as an IPA employee. ID at 4. The 

 

2 Although the appellant cited “5 U.S.C. § 300.103,” which does not exist, we assume 

he meant to refer to 5 C.F.R. § 300.103. IAF, Tab 3 at 4; see Thompson v. Office of 

Personnel Management, 81 M.S.P.R. 677, ¶ 5 (1999) (stating that a pro se appellant is 

not required to plead issues with the precision of an attorney in a judicial proceeding).
4

administrative judge further found that, instead of challenging an employment 

practice that violated a requirement set forth in 5 C.F.R. § 300.103, the appellant 

was challenging his nonselection for a specific position, a matter over which the 

Board lacks jurisdiction. ID at 4-5. The administrative judge found, too, that the 

appellant was not entitled to reinstatement because he was not previously 

employed in the competitive service and that the Board lacks jurisdiction to 

review his reinstatement claim under 5 C.F.R. § 315.401. ID at 5-6. 

Additionally, the administrative judge found that, to the extent the appellant 

raised claims of discrimination and retaliation, such claims were beyond the 

Board’s purview absent an appealable action. ID at 6. Finally, the administrative 

judge denied the appellant’s request for a hearing because he had failed to raise a 

nonfrivolous allegation of Board jurisdiction. Id.

¶6 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tabs 1-4. The agency has filed a response. PFR File, Tab 6. The appellant 

has filed a reply to the agency’s response. PFR File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 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). If an appellant makes a 

nonfrivolous allegation3of Board jurisdiction over an appeal, he is entitled to a 

jurisdictional hearing at which he must prove jurisdiction by a preponderance of 

the evidence.

4

 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 

(Fed. Cir. 2006) (en banc), superseded on other grounds as stated in Clark v. 

U.S. Postal Service, 123 M.S.P.R. 466 (2016); 5 C.F.R. § 1201.56(b)(2)(i)(A).

 

3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s).

4 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5

¶8 Generally, a nonselection is not appealable directly to the Board. Prewitt v. 

Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998). As the 

administrative judge correctly informed the appellant, however, an applicant for 

employment who believes that an employment practice applied to him by OPM 

violates a basic requirement set forth in 5 C.F.R. § 300.103 is entitled to appeal to

the Board. IAF, Tab 2 at 3-4; Burroughs v. Department of the Army, 

116 M.S.P.R. 292, ¶ 15 (2011); 5 C.F.R. § 300.104(a). The Board has 

jurisdiction over an employment practice claim under 5 C.F.R. § 300.104(a) when 

the following two conditions are met: (1) the appeal must concern an 

employment practice that OPM is involved in administering; and (2) the appellant 

must make a nonfrivolous allegation that the employment practice violated one of 

the “basic requirements” for employment practices set forth in 5 C.F.R. 

§ 300.103. Burroughs, 116 M.S.P.R. 292, ¶ 15. Moreover, an agency’s 

misapplying a valid OPM requirement may constitute an appealable employment 

practice action. Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 10 (2007). 

The term “employment practices” includes the development and use of 

examinations, qualification standards, tests, and other measurement instruments. 

Id.; 5 C.F.R. § 300.101. Although that term is to be construed broadly, “an 

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

rule or practice of some kind does not qualify as an ‘employment practice.’” 

Prewitt, 133 F.3d at 887.

¶9 Here, the administrative judge properly found that the appellant failed to 

nonfrivolously allege that the agency or OPM applied an employment practice to 

him that violated a requirement set forth in 5 C.F.R. § 300.103. ID at 4-5. The 

appellant argued below that the agency’s and OPM’s refusal to recognize as 

Federal service his detail to the agency under the IPA violated 5 C.F.R. 

§ 300.103(c) because this meant he was discriminated against based on a 

nonmerit factor. IAF, Tab 3 at 4. However, we find that he has failed to identify 

an employment practice that OPM is involved in administering. See, e.g.,
6

Richardson v. Department of Defense, 78 M.S.P.R. 58, 61 (1998) (finding no 

jurisdiction over an employment practices appeal when the appellant failed to 

identify a basic requirement that was missing from the instrument the agency used 

to evaluate her application and she was simply contesting the agency’s rating and 

handling of her individual application).

¶10 Further, we agree with the administrative judge’s finding that the Board 

lacks jurisdiction to review a denial of reinstatement claim under 5 C.F.R. 

§ 315.401. ID at 6; see Hicks v. Department of the Navy, 33 M.S.P.R. 511, 513 

(1987) (finding that the administrative judge correctly held that 5 C.F.R. 

§ 315.401 does not provide the Board with jurisdiction over an agency’s alleged 

denial of reinstatement rights under that section). Because the appellant has 

failed to specify a statute or regulation that provides the Board with jurisdiction 

over a denial of reinstatement claim, we decline to review the administrative 

judge’s finding that the appellant is not entitled to reinstatement. ID at 5-6; see

Hipona v. Department of the Army, 39 M.S.P.R. 522, 525 (1989) (stating that 

there is no statute or regulation that provides the Board with jurisdiction to 

review an agency’s decision to deny reinstatement eligibility to an individual 

applying for employment).

¶11 In his petition for review, the appellant reasserts that OPM and the agency 

discriminated against him by refusing to recognize his detail to the agency under 

the IPA as Federal service. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. However, 

as stated above, he has failed to specify an employment practice that OPM is 

involved in administering. Burroughs, 116 M.S.P.R. 292, ¶ 15. He also reiterates 

his claim that the agency denied him reinstatement, but fails to state a basis for 

Board jurisdiction over such claim. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. In 

addition, his arguments that he has reinstatement eligibility because he performed 

Federal service as an IPA employee and that his SF-50 is missing data are 

insufficient to establish Board jurisdiction. PFR File, Tab 1 at 1-2, Tab 2, Tab 4 

at 3, Tab 7. The appellant claims that the administrative judge ignored the “Cusik 
7

memo” in his pleading. PFR File, Tab 7; IAF, Tab 3 at 15-27. However, an 

administrative judge’s failure to mention all of the evidence of record does not 

mean that he did not consider it in reaching his decision. Marques v. Department 

of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 

(Fed. Cir. 1985) (Table). Moreover, the “Cusik memo” concerning the ethical 

obligations of individuals serving on detail to Federal agencies under the IPA is 

not relevant to the dispositive jurisdictional issue before us. IAF, Tab 3 at 15-27.

¶12 For the first time on review, the appellant raises a claim of retaliation for 

whistleblowing and alleges that he has filed a complaint with the Office of 

Special Counsel.

5

 PFR File, Tab 1 at 1. We decline to address his claim further 

though because he did not raise this argument below and has not explained his 

failure to do so. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 

(1980) (observing that, generally, the Board will not consider an argument raised 

for the first time in a petition for review absent a showing that it is based on new 

and material evidence not previously available despite the party’s due diligence).

¶13 The administrative judge stated the general rule that the appellant’s 

discrimination and retaliation claims could not confer jurisdiction on the Board 

when it does not otherwise exist. ID at 6; see Wren v. Department of the Army, 

2 M.S.P.R. 1, 2 (1980) (stating that prohibited personnel practices under 5 U.S.C. 

§ 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d 

867, 871-73 (D.C. Cir. 1982). Yet, in the context of an employment practices 

appeal, this rule does not apply. Richardson, 78 M.S.P.R. at 62. A basic 

requirement under 5 C.F.R. § 300.103(c) is that employment practices may not 

discriminate based on nonmerit factors. Further, an exception to the general rule 

that the Board lacks jurisdiction over nonselections is when an appellant claims 

that a nonselection was made in retaliation for whistleblowing or certain 

 

5 Although the administrative judge made a finding regarding a potential retaliation 

claim, we find no evidence in the record that the appellant actually raised a retaliation

claim below. ID at 6.
8

protected activity. IAF, Tab 2 at 3. However, the administrative judge’s 

overbroad statement did not prejudice the appellant’s substantive rights and, thus, 

does not provide a basis for disturbing the initial decision. See Panter v. 

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an 

adjudicatory error that is not prejudicial to a party’s substantive rights provides 

no basis for reversal of an initial decision).

¶14 Accordingly, we find that the administrative judge properly dismissed this 

appeal for lack of jurisdiction.

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. 

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. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 
9

review in one court of appeals, you may be precluded from seeking review in any 

other court.

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 U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about other 

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.

If you are interested in securing pro bono representation for your 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