NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

THOMAS J. LUCHAY,

Petitioner

v.

MERIT SYSTEMS PROTECTION 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

______________________ 

THOMAS J. LUCHAY, Mullica Hill, NJ, pro se.

KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before NEWMAN, CLEVENGER, and MOORE, Circuit Judges.
2 LUCHAY v. MSPB

NEWMAN, Circuit 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.

DISCUSSION

Mr. Luchay was employed by the Navy as a Chemical 

Engineer, grade GS-13. In 2011 he applied for the advertised position of Branch Head. He was not selected for 

the position and subsequently filed a grievance, stating 

that the person who was selected did not meet the qualifications for the position and had falsified the qualifications 

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, certification, 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, the Commanding Officer had initiated an inquiry into the allegation of falsification of records. The 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 discrimination because the 

1 Luchay v. Department of the Navy, No. PH–3443–

13–2901–I–1 (M.S.P.B. Aug. 12, 2014).

 
LUCHAY v. MSPB 3

person selected was ten years younger than the other 

candidates; and that this was an appealable action because it was an appeal of a suitability determination. 

The MSPB Administrative Judge (AJ) ruled that the 

Navy had not violated 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 nonselection based on alleged irregularities in the selection 

process, absent jurisdiction of the appeal of non-selection 

on an authorized ground. The 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 claims may be taken to the EEOC.

Mr. Luchay appealed to the Federal Circuit. On initial screening, the court observed the discrimination claim 

and notified Mr. Luchay that the Federal Circuit does not 

have jurisdiction of MSPB rulings on discrimination 

claims. Mr. Luchay then dropped the discrimination

issue from this appeal. 

MSPB jurisdiction “is limited to actions designated as 

appealable to the Board ‘under any law, rule, or regulation.’” Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 

(Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). The nonselection 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). 

The 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)). 
4 LUCHAY v. MSPB

Mr. Luchay argues that his appeal meets the requirements for MSPB appeal, challenging 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 actually 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 affected him, thus meeting the regulatory requirement for 

appeal in that the allegedly improper employment practice “was applied to him or her.” 5 C.F.R. § 300.104(a); see 

Dow v. GSA, 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 agency’s manipulation of test scores may indeed 

constitute an improper “employment practice.” However, 

the Navy stated to the MSPB that there was no evidence 

that this practice was applied to reduce Mr. Luchay’s 

score or raise the selectee’s score, and we have been 

directed to no support for Mr. Luchay’s allegation. The 

AJ, as affirmed by the Board, found that this jurisdictional ground did not exist. We discern no error in that 

finding.

The AJ also considered the jurisdictional 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 may 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 can-
LUCHAY v. MSPB 5

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

See also 5 C.F.R. § 731.202(b) (criteria for making suitability determinations); § 731.501(a) (a suitability action 

may be appealed to the Merit Systems Protection Board); 

§ 731.203(b) (“(b) A non-selection, or cancellation of eligibility 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) Misconduct or negligence in employment; (2) Criminal or dishonest conduct; (3) Material, intentional false statement, or 

deception or fraud in examination or appointment; (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 question.”). 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 precedent, and is affirmed. 

Mr. Luchay suggests that the Navy’s investigation of 

his allegation that the person selected falsified his application qualifies as a suitability determination pursuant to 

5 C.F.R. § 731.202(b). He states: “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 

Br. 7. Under § 731.202(b)(3), a “material, intentional 

false statement, or deception or fraud in examination or 

appointment” is a factor to be considered as a basis for 

making suitability determinations.
6 LUCHAY v. MSPB

Mr. Luchay states that he “provided examples that 

demonstrated that his scoring was inflated,” Pet’r Br. 2. 

However, the Navy’s investigation reached a contrary 

conclusion. We discern no error in the Board’s determination that Mr. Luchay was not the target of a suitability 

action. Indeed, Mr. Luchay agrees with this point, conceding that: “Under 5 C.F.R. § 1201.3(a)(9) which discusses 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 allegations, we conclude that the Board acted 

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 discovery matters 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)). 

CONCLUSION

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. The appeal was properly 

dismissed. 

No costs.

AFFIRMED