N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
THOMAS J. LUCHAY, Petitioner

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent

______________________

2015

- 3010

______________________ Petition for review of the Merit Systems Protection Board in No. PH

- 3443

- 13

- 2901 -I- 1.

______________________

Decided: October 13, 2015

______________________

T HOMAS J. L UCHAY , Mullica Hill, NJ, pro se.

K

ATRINA L EDERER , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before N EWMAN , C LEVENGER , and M OORE , Circuit Judges.LUCHAY v. MSPB 2

N EWMAN , C ircuit Judge.
Thomas J. Luchay appeals the decision of the Merit Systems Protection Board ( MSPB or Board) dismissing his appeal of non

- selection for a position of Branch Head in the Department of the Navy

. 1 We affirm the Board’s decision.

D ISCUSSI ON Mr. Luchay was employed by the Navy as a Chemical Engineer , grade GS

- 13

. In 2011 he applied for the adve rtised position of Branch Head. He was not selected for the position and subsequently filed a grievance, stating that the person who was selected d id not meet the qualifications for the position and had falsified the quali fications stated on his résumé.
Mr. Luchay and his union representative met with the Commanding Officer of the section who explained that “matters regarding any examination, certifi cation, or appointment are specifically excluded from the grievance and arbitration procedures ,” in accordance with the Labor Management Agreement. Grievance Dec. on Command Level Review, Sept. 10, 2012, at 1. However, t he Co mmanding Officer had initiated a n inquiry into the alleg ation of falsification of records

. T he Commanding Officer issued a decision on the grievance

, stating that the person who was selected did not provide inaccuracies and that his qualifications had been substantiated. The Officer concluded that he “ was properly certified for the Code 650 Branch Head position. ” Id. at 2

. Mr. Luchay appealed to the MSPB

, stating : that the Navy had committed a prohibited personnel practice; that the Navy engaged in age dis crimination because the

1 Luchay v. Department of the Navy , No. PH

– 3443

– 13

– 2901 –I– 1 (M.S.P.B. Aug. 12, 2014).LUC HAY v. MSPB 3

person selected was ten years younger than the other candidates; and that this was a n appealable action b ecause it was an a ppeal of a suitability determination.

T he MSPB Administrative Judge (AJ) ruled that the Navy had not v iolated an employment practice as applied
to Mr. Luchay and that the Navy did not take a suitability action against Mr. Luchay. The AJ explained that the Board lacks jurisdiction to review an applicant’s non

selection based on alleged irregularities in the selection

process, a bsent jurisdiction of the appeal of non -selection on an authorized ground. T he AJ also held that Mr. Luchay’s claim of age discrimination , of itself, is not appealable to the MSPB ; the Board by footnote mentioned that discrimination c laims may be taken to the EEOC.
Mr. Luchay appealed to the Federal Circuit . O n in itial screening

, the court observed the discrimination claim and notified Mr. Luchay that the Federal C ircuit does not have jurisdiction of MSPB rulings on discrimination claims. Mr. Luchay then dropped the discri m ination issue from this appeal

. MSPB jurisdiction “ is limited to actions designated as appealable to the Board ‘under any law, rule, or regul ation.’ ” Prewitt v. Merit Sys. Prot. Bd. , 133 F.3d 885, 886 (Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). The non

selection of an applicant for a federal position is generally not appealable to the MSPB

. Id. However, an applicant who believes that an employment practice applied to him violates 5 C.F.R. § 300.103 is generally entitled to appeal to the Board. See 5 C.F.R. § 300.104(a) ; Meeker v. Merit Syss. Prot. Bd. , 319 F.3d 1368, 1373 (Fed. Cir. 2003); Mapstone v. Dep’t of the Interior , 110 M.S.P.R. 122 (2008). T he applicant must show that “there must have been an ‘employment practice’ and that ‘practice’ must have been ‘applied to’ the applicant by the OPM.” Dow v. Gen. Servs. Admin. , 590 F.3d 1338, 1342 (Fed. Cir. 2010) ( quoting 5 C.F.R. § 300.104(a))

.LUCHAY v. MSPB 4

Mr. Luchay argues that his appeal meets the r equirements for MSPB appeal, challeng ing the Navy’s alleged “employment practice” of inflating the test scores of the person who was selected for the Branch Head position and deflating the scores of all other applicants, including himself. Mr. Luchay states: “I cannot state who would have actua lly scored the highest if the process fairly considered the merits and job qualifications

, ” Pet’r’s Br. 3, but he argues that the Navy’s scoring system a ffected him , thus meeting the regula tory requirement for appeal in that the allegedly improper employme nt pra ctice “was applied to him or her.” 5 C.F.R. § 300.104(a); see Dow v. G SA, 590 F.3d at 1342 (stating that for the Board to have jurisdiction it is “necessary that the challenged employment practice have been applied to the applicant as the basis for the adverse hiring decision ”).

An a gency’s manipulation of test scores may indeed constitute an improper “employment practice .” However,
t he Navy stated to the MSPB that the r e was no evidence that th is practice was applied to reduce Mr. Luchay’s

score or raise the selectee’s score , and w e have been directed to no support for Mr. Luchay’s allegation. The AJ

, as affirmed by the Board

, found that this jurisdict io nal ground did not exist

. We discern no error in that finding.

The AJ also considered the jurisd iction al aspect of the asserted “ suitability action ,” as set forth in 5 C.F.R. § 731.501(a) ( “When OPM or an agency acting under delegated authority under this part takes a suitability action against a person, that person m a y appeal the action to the Merit Systems Protection Board . . . .” ). A suitability action is defined in 5 C.F.R. § 1201.3(a)(9) as : Action based on suitability determinations, which relate to an individual’s character or conduct that may have an impact on the integrity or efficiency of the service. Suitability actions include the ca n-LUC HAY v. MSPB 5

cellation of eligibility, removal, cancellation of r einstateme nt eligibility, and debarment.

S ee also 5 C.F.R. § 731.202(b) (criteria for making suit ability determinations) ; § 731.501 (a) ( a suitability action may be appeal ed to the Merit Systems Protection Board) ; § 731.203 (b) (“ (b) A non

- selection, or cancellation of elig ibility for a specific position based on an objection to an eligible or pass over of a preference eligible under 5 CFR 332.406, is not a suitability action even if it is based on reasons set forth in § 731.202 ”) , § 731.202(b)(“ (1) Misco nduct or negligence in employment; (2) Criminal or disho nest conduct; (3) Material, intentional false statement, or deception or fraud in examination or a ppointment; (4) Refusal to furnish testimony as required by § 5.4 of this chapter; (5) Alcohol abuse ...; (6) Illegal use of narcotics ...; (7) Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in quest ion. ”). The Board correctly held that non -selection is not a suitability action, even if based on the reasons defined in the Regulations. Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236, 240 (2007)

. The Board’s ruling conforms to statute, regulation, and prec edent, and is affirmed

. Mr. Luchay suggests that the Navy’s investigation of his allegation that the person selected falsified his appl ication qualifies as a suitability determination pursuant to 5 C.F.R. § 731.202(b). He s tates: “The issue of suitability is a factor in my employment practices allegation. If the selectee is shown to have falsified his application, and is determined to be ineligible, then the question of how he was rated highest needs to be examined closely.” Pet’r’s B r. 7. Under § 731.202(b)(3), a “ m aterial, intentional false statement, or deception or fraud in examination or appointment” is a factor to be considered as a basis for maki ng suitability determinations.LUCHAY v. MSPB 6

Mr. Luchay states that he “provided examples that demonstrated that his scoring was inflated,” Pet’r Br. 2. However, t he Navy ’s investigat ion reached a contrary conclusion

. We discern no error in the Board’s determin ation that Mr. Luchay was not the target o f a suitability action

. Indeed, Mr. Luch ay agrees with this point, co nceding that : “Under 5 C.F.R. § 1201.3(a)(9) which discus ses suitability actions, the administrative judge and I are in agreement that jurisdiction under this statute does not apply in this case.”
Mr. Luchay states that “ As a minimum . . . I should be granted discovery to obtain additional evidence to support my case.” Reply Br. 7. The Board declined discovery. In view of the absence of any threshold of support for Mr. Luchay’s allega tions, we conclude that the Board ac ted within its discretion. See Parker v. Dept. of Hous. and Urban Dev

. , 106 M.S.P.R. 329, 332 (2007) (“An AJ has wide discretion over matters pertaining to discovery, and the Board will not reverse his rulings on discov ery ma tters absent an abuse of discretion.”) (citing Wagner v. Envtl

. Prot. Agency , 54 M.S.P.R. 447, 452 (1992), aff'd

, 996 F.2d 1236 (Fed. Cir. 1993) ).

C ONCLUSION

We have considered all of Mr. Luchay’s arguments

. We conclude that the Board did not err or exceed its discretionary authority in holding that Mr. Luchay had not established entitlement to appeal his non

- selection for the position of Branch Head

. T he appeal was properly dismissed

. No costs.

A FFIRMED