UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WESLEY W. WILSON,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

CH-3443-15-0216-I-1

DATE: June 30, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Wesley W. Wilson, Chicago, Illinois, pro se.

K. Tyson Shaw, Washington, D.C., 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 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 interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case; the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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, and based on the following points and authorities, 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). However, we FORWARD the appellant’s claim of whistleblower 

retaliation to the Chicago Regional Office for docketing as a new individual right 

of action (IRA) appeal.

BACKGROUND

¶2 The appellant filed this appeal challenging his nonselection for a merit 

promotion. Initial Appeal File (IAF), Tab 1. He alleged that the nonselection 

was discriminatory. Id. The administrative judge issued an acknowledgment 

order informing the appellant that the Board may not have jurisdiction over his 

nonselection appeal, but that the Board could have jurisdiction over, inter alia, a 

claim that a nonselection was in retaliation for whistleblowing. IAF, Tab 2. The 

appellant responded that the agency committed prohibited personnel practices; he 

also appeared to assert an employment practices claim. IAF, Tab 6. In a second 

jurisdictional order, the administrative judge informed the appellant of his 

jurisdictional burden with respect to an employment practices claim. IAF, Tab 8. 

The appellant responded, reasserting his prior argument and stating for the first 

time that he filed a complaint with the Office of Special Counsel (OSC) after he 

discovered his nonselection. IAF, Tab 9 at 6.

¶3 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). Specifically, she found 
that the appellant did not offer any argument or evidence that his nonselection 

constituted an appealable action. ID at 8. She also found that his allegations 

were insufficient to support an employment practices claim. ID at 8. She did not 

address the appellant’s statement that he had filed an OSC complaint. 

¶4 The appellant has filed a timely petition for review in which he alleges that 

he participated in protected whistleblowing activity when he filed an equal 

employment opportunity (EEO) complaint against the agency.

2

 Petition for 

Review (PFR) File, Tab 1 at 5-6. The appellant further alleges that the agency 

retaliated against him for this activity by misclassifying him as not “mobile,” 

which led to his nonselection. Id. The agency has responded in opposition to the 

petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

Employment Practices Claim

¶5 We agree with the administrative judge that the appellant has failed to 

establish jurisdiction over his employment practices claim. The Board has 

jurisdiction over an employment practices appeal pursuant to 5 C.F.R. 

§ 300.104(a) when two conditions are met: (1) the appeal concerns an 

employment practice that the Office of Personnel Management (OPM) is involved 

in administering; and (2) the employment practice must be alleged to have 

violated one of the “basic requirements” for employment practices set forth 

in 5 C.F.R. § 300.103. Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 

403, ¶ 6 (2010). 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 

 2 On petition for review, the appellant has submitted additional evidence. Petition for 

Review File, Tab 1 at 10-55. We do not consider this evidence because it is not 

material to the issue of whether the Board has jurisdiction over this appeal. See

5 C.F.R. § 1201.115(d). However, even if we did consider this evidence, it would not 

affect our disposition in this case.
“employment practice.” Prewitt v. Merit Systems Protection Board, 133 F.3d 

885, 887 (Fed. Cir. 1998).

¶6 The administrative judge found that the appellant “failed to submit evidence 

or even allege” the occurrence of anything other than an internal selection process 

by his employing agency. See ID at 8. The appellant challenges his nonselection

because he disagrees with the agency’s determination that he was not “mobile”

and based upon allegations of discrimination and retaliation for EEO activity and 

whistleblowing. IAF, Tab 1; PFR File, Tab 1 at 5. The Board lacks jurisdiction 

over the appellant’s claims, however, because these allegations do not show that 

his nonselection constituted an employment practice.

3

 Manno v. Department of 

Justice, 85 M.S.P.R. 696, ¶ 7 (2000) (finding that the appellant failed to allege or 

show that the agency’s alleged mishandling of his employment application was 

pursuant to or part of any rule or practice).

Whistleblower Retaliation Claim

¶7 The Board generally does not have jurisdiction to review an agency’s 

decision not to select a particular applicant for a vacant position. Sapla v. 

Department of the Navy, 118 M.S.P.R. 551, ¶ 8 (2012). The Board, however, may

have jurisdiction over nonselection appeals in the context of an IRA appeal in 

which the appellant alleges retaliation under the Whistleblower Protection Act. 

Id. As the administrative judge does not appear to have considered whether the 

Board has jurisdiction over this case as an IRA appeal, and the parties have not 

been afforded the opportunity to address the issue of IRA jurisdiction under the 

proper jurisdictional standard, we find it appropriate to forward the appellant’s 

appeal to the regional office for docketing and adjudication as an IRA appeal. 

See Neice v. Department of Homeland Security, 105 M.S.P.R. 211, ¶ 17 (2007). 

 3 Absent an otherwise appealable action, the Board lacks jurisdiction over the 

appellant’s claims that his nonselection constituted discrimination and EEO retaliation. 

Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 

(D.C. Cir. 1982).
After docketing this appeal, the administrative judge shall fully inform the 

appellant of the jurisdictional requirements in an IRA appeal and determine 

whether the Board has IRA jurisdiction over this matter, and then, if appropriate, 

determine the merits.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 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 United States 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 United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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.
If you are interested in securing pro bono representation for your appeal to 

the 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.

______________________________

William D. Spencer

Clerk of the Board