NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MICHAEL A. NICHOLS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3064

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-3443-14-0159-I-1.

______________________ 

Decided: July 13, 2015

______________________ 

MICHAEL A. NICHOLS, Pensacola, FL, pro se.

KATRINA LEDERER, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before PROST, Chief Judge, NEWMAN and WALLACH,

Circuit Judges. 
2 NICHOLS v. MERIT SYS. PROT. BD. 

PER CURIAM.

Petitioner Michael A. Nichols appeals the decision of 

the Merit Systems Protection Board (“the Board”) dismissing his appeal for lack of jurisdiction. See Final 

Order, Nichols v. Dep’t of the Navy, AT-3443-14-0159-I-1 

(M.S.P.B. Oct. 16, 2014) (Resp’t’s App. 10–16) (“Final 

Order”); Initial Decision, Nichols v. Dep’t of the Navy, AT3443-14-0159-I-1 (M.S.P.B. Jan. 27, 2014) (Resp’t’s App. 

1–9) (“Initial Decision”). For the reasons set forth below, 

this court affirms.

BACKGROUND

I. Facts and Proceedings

Mr. Nichols is an Education Systems Specialist, GS12, with the United States Department of the Navy 

(“Agency”) in Pensacola, Florida. On December 6, 2011, 

Mr. Nichols filed an Equal Employment Opportunity 

(“EEO”) complaint with the Agency, which the Agency 

investigated and thereafter issued a final agency decision. 

On November 7, 2013, Mr. Nichols filed with the Board an 

“Employment Practices (Part 300)” appeal, see 5 C.F.R. pt. 

300 (2011), challenging the selection process for certain 

supervisory positions within the Agency. Specifically, Mr. 

Nichols alleged the Agency failed to follow the requirements of 5 C.F.R. § 300.103, which delineates the “basic 

requirements” for employment practices of the federal 

government, with regard to several selections within the 

Naval Education and Training Professional Development 

and Technology Center Command. In making the selections, Mr. Nichols claimed the Agency failed to use a 

“professionally developed job analysis” to identify the 

important factors in evaluating candidates. Resp’t’s App. 

31. He also asserted the Agency discriminated against 
NICHOLS v. MERIT SYS. PROT. BD. 3

him based on age and gender,1 as he was more qualified 

than the women selected for two positions. In addition, 

he alleged the Agency did not use a Merit Promotion Plan 

pursuant to 5 C.F.R. § 335.102 in making these selections.

On December 4, 2013, an administrative judge notified Mr. Nichols of the jurisdictional issues raised by his 

appeal and ordered him to file arguments and supporting 

evidence to prove his appeal was within the Board’s 

jurisdiction. In response, Mr. Nichols argued the Agency 

violated the basic requirements for employment practices

by:

(1) failing to have or utilize a merit promotion 

plan; (2) failing to perform a job analysis; (3) using 

a scoring criteria [sic] unrelated to the requirements of the position being filled; (4) using 

knowledge, skills, and abilities . . . in making the 

selection which were different from those listed in 

1 Mr. Nichols characterizes his appeal as “a mixedcase appeal,” which “is an appeal filed with the [Board]

that alleges that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 

C.F.R. § 1614.302 (2011). This classification is important 

because claims of discrimination are normally not within 

the Board’s jurisdiction, but “[i]f the Board has jurisdiction to review an agency action against an employee, 

Congress has also authorized it to adjudicate the employee’s claims of discrimination.” Conforto v. Merit Sys. Prot. 

Bd., 713 F.3d 1111, 1115 (Fed. Cir. 2013). Such mixed 

cases, if decided on the merits, are then appealable to a 

federal district court, or to the Equal Employment Opportunity Commission (“EEOC”) and then to a district court 

if necessary, but not to this court. Id. at 1116. However, 

“when the Board dismisses a purported mixed case appeal 

for lack of jurisdiction, any appeal from that decision is to 

this court.” Id. at 1121.

 
4 NICHOLS v. MERIT SYS. PROT. BD. 

the position announcement; and (5) using selection criteria developed in a discriminatory manner 

in order to favor a preferred female candidate for 

the position.

Initial Decision at 4. Mr. Nichols, however, did not submit any supporting evidence with his response.

On January 27, 2014, the administrative judge dismissed the appeal for lack of jurisdiction. Id. at 1–9. The 

administrative judge noted a candidate for employment 

who believes an employment practice violates 5 C.F.R. 

§ 300.103 is entitled to appeal to the Board when: (1) the 

appeal concerns an employment practice the Office of 

Personnel Management (“OPM”) is involved in administering; and (2) the appellant makes a non-frivolous allegation that the employment practice violated one of the 

basic requirements for employment practices set forth in 

§ 300.103. Id. at 2 (citing Meeker v. Merit Sys. Prot. Bd., 

319 F.3d 1368, 1373 (Fed. Cir. 2003)). The administrative 

judge found Mr. Nichols failed to make a non-frivolous 

allegation that an employment practice applied to him 

violated the basic requirements under § 300.103 because

Mr. Nichols “provided no meaningful evidence supporting 

his claim.” Id. at 4. Thus, the administrative judge found 

Mr. Nichols failed to establish Board jurisdiction. Id. at 5.

Mr. Nichols petitioned for review of the Initial Decision, arguing the Agency failed to submit an agency file 

with all of the relevant information, as required by 5 

C.F.R. § 1201.25(c) (“The agency response to an appeal 

must contain . . . [a]ll documents contained in the agency 

record of the action.”). Final Order at 12. Had the Agency complied, Mr. Nichols asserted, the Agency’s “Report of 

Investigation” developed in response to his original EEO 

Complaint would have been included. Id.

The Board denied the petition for review and affirmed 

the administrative judge’s decision, agreeing Mr. Nichols

failed to establish Board jurisdiction. Id. at 1–7. Specifi-
NICHOLS v. MERIT SYS. PROT. BD. 5

cally, the Board found Mr. Nichols’s appeal amounted to a 

challenge of “the individual selection and scoring criteria 

developed by the [A]gency, which is unique to a particular 

position within the [A]gency.” Id. at 4. Such a challenge, 

the Board found, was better characterized “‘as an irregularity in the selection process rather than an application 

of a specific rule, provision, or policy by the agency.’” Id.

(quoting Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 887 

(Fed. Cir. 1998)). The Board concluded “a challenge to an 

agency’s individualized hiring decision falls outside of the 

Board’s appellate jurisdiction.” Id.

In addition, the Board found Mr. Nichols “failed to allege that OPM was involved in the agency’s allegedly 

improper development of the scoring criteria used to 

select a female candidate over the appellant.” Id. at 5. It 

stated Mr. Nichols’s “bare assertion that the agency 

misapplied OPM’s regulatory requirement that a job 

analysis be used to identify the basic duties and responsibilities of the position, without more, fails to nonfrivolously establish how the agency’s job analysis is deficient or 

how the agency misapplied those standards.” Id. Therefore, the Board found Mr. Nichols did not establish Board 

jurisdiction over his appeal.

Mr. Nichols appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

I. Standard of Review 

This court’s “scope of . . . review of [B]oard decisions is 

limited to whether they are (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, 

rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Forest v. Merit Sys. Prot. Bd., 

47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c) 

(1988)). The issue of Board jurisdiction is a question of 
6 NICHOLS v. MERIT SYS. PROT. BD. 

law this court reviews de novo. Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is 

bound by the Board’s jurisdictional factual findings “unless those findings are not supported by substantial 

evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 

1316 (Fed. Cir. 1998).

II. Legal Framework

“The Board’s jurisdiction is not plenary; it is strictly 

defined and confined by statute and regulation.” Id.; see 5 

U.S.C. § 7701(a). “An agency’s failure to select an applicant for a vacant position is generally not appealable to 

the Board.” Prewitt, 133 F.3d at 886 (citing Ellison v. 

Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993) 

(non-selection for promotion); Diamond v. U.S. Postal 

Serv., 51 M.S.P.R. 448, 450 (1991) (non-selection for 

appointment), aff’d, 972 F.2d 1353 (Fed. Cir. 1992) (unpublished)). Pursuant to 5 C.F.R. § 300.104(a) (“Employment practices”), however, “[a] candidate who believes 

that an employment practice which was applied to him or 

her by the [OPM] violates a basic requirement in 

§ 300.103 is entitled to appeal to the [Board].” 5 C.F.R. 

§ 300.104(a) (emphases added). Thus, the Board has 

jurisdiction under § 300.104(a) “when two conditions are 

met: first, the appeal must concern an ‘employment 

practice’ [of the OPM,] and second, 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.” Meeker, 319 F.3d at 1373. 

An “employment practice” is defined as those practices “that affect the recruitment, measurement, ranking, 

and selection of individuals for initial appointment and 

competitive promotion.” 5 C.F.R. § 300.101. While this 

court has held the term “employment practices” “has a 

naturally broad and inclusive meaning,” Dowd v. United 

States (Dowd I), 713 F.2d 720, 723 (Fed. Cir. 1983), “an 

individual agency action or decision that is not made 
NICHOLS v. MERIT SYS. PROT. BD. 7

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. As to whether an “employment practice” 

was applied by the OPM, “in certain circumstances, 

OPM’s involvement in an agency’s selection process may 

be sufficient to characterize a non-selection action by that 

agency as a practice applied by OPM. For that prerequisite to be satisfied, however, OPM’s involvement in the 

selection process must be significant.” Id. at 888 (emphasis added).

The “Basic requirements” under § 300.103 include:

(a) Job analysis. Each employment practice of the 

Federal Government generally, and of individual 

agencies, shall be based on a job analysis to identify:

(1) The basic duties and responsibilities;

(2) The knowledges, skills, and abilities 

required to perform the duties and responsibilities; and

(3) The factors that are important in evaluating candidates. The job analysis may 

cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.

(b) Relevance.

(1) There shall be a rational relationship 

between performance in the position to be 

filled . . . and the employment practice 

used. . . .

. . . .

(c) Equal employment opportunity and prohibited 

forms of discrimination. An employment practice 
8 NICHOLS v. MERIT SYS. PROT. BD. 

must not discriminate on the basis of[, inter alia,]

. . . sex . . . [or] age. 

5 C.F.R. § 300.103; see Vesser v. Office of Pers. Mgmt., 29 

F.3d 600, 603 (Fed. Cir. 1994) (“[A]n employment practice 

[must] be (a) based on a ‘job analysis’ that sets forth the 

duties of and qualifications for the position, (b) relevant to 

performance in the position, and (c) not discriminatory.”).

“In order to establish Board jurisdiction, the petitioner must ‘make [ ] non-frivolous allegations of jurisdiction 

supported by affidavits or other evidence.’” Marcino v. 

U.S. Postal Serv., 344 F.3d 1199, 1202 (Fed. Cir. 2003)

(quoting Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 

1361 (Fed. Cir. 2002)). Mr. Nichols bears the burden of 

demonstrating Board jurisdiction by a preponderance of 

the evidence. Fields v. Dep’t of Justice, 452 F.3d 1297, 

1302 (Fed. Cir. 2006); see also 5 C.F.R. § 1201.56(a)(2). 

III. Mr. Nichols Has Not Demonstrated Board Jurisdiction by a Preponderance of the Evidence

On appeal, Mr. Nichols contends “the selection criteria—those criteria by which applicant resumes were rated 

and ranked—were not based on a valid, professionally 

developed job analysis in accordance with the basic requirements of 5 C.F.R. § 300.103.” Pet’r’s Br. 3. He says 

these scoring criteria were “not logically related to the 

positions for which I had applied, and that this would not 

have occurred had a legally required job analysis been

conducted.” Id. Mr. Nichols argues “if the knowledges, 

skills, and abilities that are used as the basis for selecting 

candidates are not based on a job analysis that provides 

the foundational relevance to the position (see 5 C.F.R. 

[§ ]300.103(b)), it stands to reason that merit principles 

are being violated.” Id. at 8. He also argues “the selection 

criteria were developed in a discriminatory manner 

intended to favor certain female co-workers.” Id. at 3.
NICHOLS v. MERIT SYS. PROT. BD. 9

As to the involvement of OPM, Mr. Nichols argues “if 

an agency fails to conduct a valid OPM requirement 

codified by Part 300, it has misapplied a valid OPM 

requirement.” Id. at 27. He also contends that many of 

his issues would “have been resolved had the Board 

involved the [OPM] as they seem to be required to do by 5 

U.S.C. § 7701(d)(2). . . . I have little doubt that OPM 

would agree that their ‘Basic Requirements’ in 5 C.F.R. 

Part 300 were not adhered to by the [Agency].” Id. at 30.

As to the lack of supporting evidence for these allegations, Mr. Nichols says this resulted from the Agency’s 

failure to treat his case as a mixed case.2 Id. at 10. He

asserts he “took great care . . . to file a mixed-case EEO 

complaint rather than file directly to the Board because it 

was [his] belief that an EEO investigation would prove 

useful prior to going before the Board.” Id. at 4. Because 

the Agency’s Report of Investigation was not placed on the 

record, as he believes was required by 5 C.F.R. 

§ 1201.25(c), he was unable to provide the requested 

evidence. Without additional discovery, Mr. Nichols 

conceded he “didn’t have much in the way of evidence.” 

Id. at 10. However, he provided citations to the Report of 

Investigation and an email from the Human Resources 

Liaison who handled the challenged selections, and Mr. 

Nichols “believe[s] that these two references, which were 

my most compelling documents without the benefit of 

2 To the extent Mr. Nichols argues the Board erred 

in failing to treat this appeal as a mixed-case, these 

arguments do not support jurisdiction. That is, discrimination claims are not within the Board’s jurisdiction 

unless “the Board ha[d] jurisdiction to review an agency 

action against an employee.” See Conforto, 713 F.3d at

1115. Because the Board found it did not have jurisdiction to review Mr. Nichols’s § 300.103 appeal, it would not 

have jurisdiction to hear the discrimination claims.

 
10 NICHOLS v. MERIT SYS. PROT. BD. 

additional discovery, should have been enough to satisfy 

any non-frivolous allegation requirements regarding 

jurisdiction.” Id. at 11. That is, “referencing a citation 

within the investigative file that the agency should have 

provided to the Board in its entirety should have been 

satisfactory documentation for matters of establishing 

jurisdiction.” Id. at 13.

In addition, Mr. Nichols points out that on the very 

day the administrative judge issued the Initial Decision, 

his representative was preparing to submit a Motion to 

Compel Discovery and a Motion for Sanctions for the 

failure of the Agency to comply with 5 C.F.R. § 1201.25. 

Id. at 12. These Motions were not filed because the 

administrative judge had already rendered a decision in 

the case. Thus, Mr. Nichols argues, he “was not provided 

adequate time for discovery” and the administrative 

judgment “failed to enforce 5 C.F.R. § 1201.25(c), and 

compel the Agency to submit ‘[a]ll documents contained in 

the agency record of the action.’” Id. at 1.

The Government responds that “[t]he Board considered all relevant facts and correctly determined that [Mr. 

Nichols] failed to make a non-frivolous allegation that the 

Board had jurisdiction over his appeal.” Resp’t’s Br. 7. 

First, it argues the Board correctly found Mr. Nichols 

failed to show the Agency’s action constituted an “employment practice” for purposes of the regulations, and 

that his allegations at best show “an irregularity in the 

selection process, . . . rather than an application of a 

specific rule by the agency.” Id. at 10–11. Second, the 

Government asserts Mr. Nichols failed to show “OPM was 

involved in the administration of the alleged employment 

practice.” Id. at 12 (“Petitioner made only a bare assertion that the agency misapplied OPM’s regulatory requirement that a job analysis be used to identify the basic 

duties and responsibilities of the position.”).
NICHOLS v. MERIT SYS. PROT. BD. 11

The Government also argues this court should reject 

Mr. Nichols’s argument that the Agency or the Board was 

responsible for the lack of evidence. It says Mr. Nichols 

“himself presumably had a copy of the agency’s report of 

investigation, and could have submitted portions of it in 

response to the [administrative judge’s] jurisdictional 

order.” Id. at 14 (citing Final Order at 6 n.3). As to Mr. 

Nichols’s argument that he should have been given more 

time to conduct discovery, the Government responds 

“[a]dministrative judges have broad discretion in ruling 

on discovery matters, and absent an abuse of discretion, 

will not be reversed by the Board.” Id. (citing Morrison v. 

Dep’t of the Navy, 122 M.S.P.R. 205, 209 (2015)).

To establish jurisdiction under 5 C.F.R. § 300.104(a), 

Mr. Nichols must make non-frivolous allegations, supported by evidence, that (1) an “employment practice” (2) 

applied to him by OPM (3) violated § 300.103 because it 

was not based on a “job analysis” that was relevant to the 

position or was discriminatory. See Marcino, 344 F.3d at 

1202; Meeker, 319 F.3d at 1373; Vesser, 29 F.3d at 603. 

Here, Mr. Nichols has raised non-frivolous allegations 

that an employment practice—the selection criteria used 

by the Agency for the positions at issue—violated 

§ 300.103 because they were not based on a “job analysis” 

that was relevant to the position or were discriminatory. 

As noted, the term “employment practices” “has a naturally broad and inclusive meaning,” Dowd I, 713 F.2d at 723, 

and is defined by regulation as those practices “that affect 

the recruitment, measurement, ranking, and selection of 

individuals for initial appointment and competitive promotion,” 5 C.F.R. § 300.101. The selection criteria used 

by the Agency in this case fall within the breadth of this 

definition. The Board’s conclusion that the challenged 

employment practice was better characterized “‘as an 

irregularity in the selection process rather than an application of a specific rule, provision, or policy by the agency,’” Final Order at 4 (quoting Prewitt, 133 F.3d at 887), is 
12 NICHOLS v. MERIT SYS. PROT. BD. 

refuted by the fact that Mr. Nichols challenged the selection criteria used to fill more than one position, not his 

non-selection for a particular position. 

That Mr. Nichols was unable to support his assertion 

that the identified employment practice violated § 300.103 

was due, at least to some extent, to the Agency’s failure to 

place the Report of Investigation on the record of this 

appeal. The Board’s statement that Mr. Nichols “presumably had a copy of the agency’s [Report of Investigation] and could have submitted portions of it in response 

to the administrative judge’s jurisdictional order,” id. at 6 

n.3, ignored “procedures required by . . . regulation.” 

Forest, 47 F.3d at 410 (citing 5 U.S.C. § 7703(c)). In 

particular, the Agency was required to submit to the 

Board “[a]ll documents contained in the agency record of 

the action” under 5 C.F.R. § 1201.25(c) (“The agency 

response to an appeal must contain . . . [a]ll documents 

contained in the agency record of the action.”). Mr. Nichols’s citations to the Report of Investigation, if placed on 

the record by the Agency as required by regulation, would 

have served as preponderant evidence to support his nonfrivolous allegations of jurisdiction. See Fields, 452 F.3d 

at 1302; Marcino, 344 F.3d at 1202.

However, the Board correctly concluded that Mr. 

Nichols failed to demonstrate the alleged employment 

practice was applied by OPM, or that “OPM’s involvement 

in the selection process was . . . significant.” See Prewitt, 

133 F.3d at 888. As the Board observed, there was no 

evidence to establish “OPM was involved in the administration of the practice at issue” or “was involved in the 

agency’s allegedly improper development of the scoring 

criteria.” Final Order at 5. That is, Mr. Nichols “has not 

satisfied his burden of establishing Board jurisdiction 

with respect to th[e employment] practices . . . because he 

has not shown that OPM was involved in the administration of [the] practices.” Prewitt, 133 F.3d at 887–88; see 

also Dowd v. Office of Pers. Mgmt., Dep’t of Army (Dowd 
NICHOLS v. MERIT SYS. PROT. BD. 13

II), 745 F.2d 650, 651 (Fed. Cir. 1984) (“[S]ince OPM 

played no part in the [employment practice applied] to 

petitioner by the Department of the Army, OPM had not 

applied any employment practice to petitioner.”). Without 

such a showing, Mr. Nichols cannot establish jurisdiction 

under 5 C.F.R. § 300.104(a). Accordingly, the Board’s 

dismissal for lack of jurisdiction was proper.

CONCLUSION

For the reasons set forth above, the decision of the 

Merit Systems Protection Board is

AFFIRMED

COSTS

Each party shall bear its own costs.