UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM JOHN PHILLPOTT, II,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

AT-3443-15-0249-I-1

DATE: July 16, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

William John Phillpott, II, Metairie, Louisiana, pro se.

Obisia Rodriguez, Gulfport, Mississippi, 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 for lack of jurisdiction his appeal regarding the agency’s failure to 

refer him to the hiring official for two competitive vacancies. 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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. Except as expressly MODIFIED by this Final 

Order to consider the appellant’s timely response to the administrative judge’s 

order on the jurisdictional issue, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant, a permanent Federal employee with the Social Security 

Administration, filed an appeal with the Board after his applications for two 

human resources vacancies with the Department of the Navy were not referred to 

the hiring official. Initial Appeal File (IAF), Tab 1 at 1, 3, 5, 7. He alleged that 

he was rated as eligible but not among the best qualified candidates for both 

vacancy announcements, and thus was not referred to the hiring official for 

further review. Id. at 5. He asserted that, as a GS-11 permanent competitive 

employee, he qualified for noncompetitive special hiring authority and thus his 

name should have been sent to the hiring official on a noncompetitive eligible 

list. Id. 

¶3 In an acknowledgment order, the administrative judge notified the appellant 

that he had the burden of proving that the Board has jurisdiction over his appeal 

by preponderant evidence, and that the Board generally lacks the authority to 

address a claim than an applicant was not selected for a vacancy. IAF, Tab 2 at 2. 
3

The administrative judge informed the appellant that the Board has found 

exceptions when the agency’s decision was made in retaliation for 

whistleblowing, violated the candidate’s veterans’ preference rights, or was the 

product of discrimination based on uniformed service. Id. The administrative 

judge ordered the appellant to file evidence and argument to prove that the 

appealed action was within the Board’s jurisdiction.

¶4 The appellant timely responded that the agency’s failure to allow him to 

compete for the positions in question constituted a prohibited personnel practice 

that violated several unspecified provisions of the merit system principles set 

forth in 5 U.S.C. § 2301. IAF, Tab 4 at 4. He repeated his assertion that, as a 

permanent Federal employee seeking reassignment, he should have been 

noncompetitively referred to the hiring official pursuant to a special hiring

authority. Id. at 4-5. The agency replied that the appellant had applied for two 

separate competitive vacancies and that it had properly found that he was not 

among the best qualified candidates. IAF, Tab 5 at 6, 11. The agency noted that 

the appellant had conceded that he did not possess any human resources 

experience but met the education requirements, making him only minimally 

qualified for the positions. Id. at 14-15; see IAF, Tab 1 at 5.

¶5 The administrative judge did not grant the appellant’s request for a hearing 

because there was no factual dispute bearing on the jurisdictional issue, and he 

dismissed the appeal for lack of jurisdiction in an initial decision based on the 

written record. IAF, Tab 6, Initial Decision (ID) at 1. The administrative judge 

noted that, in the absence of an otherwise appealable action, the Board generally 

lacks jurisdiction to consider whether a particular agency action resulted from a 

prohibited personnel practice. ID at 2. He stated that the appellant had failed to

respond to his order on the jurisdictional issue and found that the record 

contained no evidence supporting a finding that the improper hiring practices 

alleged by the appellant were within the Board’s jurisdiction. ID at 3.
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DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The appellant argues that the initial decision erroneously stated that he did 

not respond to the acknowledgment order. Petition for Review (PFR) File, Tab 1 

at 4; see ID at 3. This is true. The record shows that the appellant filed a timely 

response to the administrative judge’s order on the jurisdictional issue, and thus 

we have considered this argument and evidence on review. See IAF, Tab 4. 

However, we find that the administrative judge’s error did not adversely affect 

the appellant’s substantive rights because none of the evidence and argument

submitted by the appellant supports a finding of Board jurisdiction over his 

appeal. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). 

¶7 The appellant also submits new evidence on review, stating that the 

documents were “in [his] possession awaiting some form of contact” from the 

Board or the agency, and that he planned to submit them during mediation or 

prior to the requested hearing. PFR File, Tab 1 at 3-4. He argues that the 

acknowledgment order did not inform him that an initial decision would be made 

following the submission of his pleading on the jurisdictional issue, or else he 

would have submitted all of his supporting evidence at that time. Id. at 4. Under 

5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first 

time with the petition for review absent a showing that it was unavailable before 

the record was closed despite the party’s due diligence. Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980). In contrast to the appellant’s assertion, the 

acknowledgment order clearly informed him that he had the burden of proving

that his appeal was within the Board’s jurisdiction, and that the record on 

jurisdiction would close 25 days after the date of the order. IAF, Tab 2 at 1-2. 

We find that the appellant’s submission on review does not constitute new 

evidence and further note that the submitted documents concerning various hiring 

authorities do not support a finding that the Board has jurisdiction over the 

present appeal. See PFR File, Tab 1 at 8-22. 
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¶8 The administrative judge correctly found that the Board lacks jurisdiction 

over the appellant’s claim that the agency improperly excluded him from referral 

to the hiring official for various vacancies. The Board generally lacks 

jurisdiction over an individual’s nonselection for a vacant position. Prewitt v. 

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

the appellant maintains on review that the administrative judge mischaracterized 

his nonreferral appeal as a nonselection appeal, he has not presented any 

argument or evidence that his claim is within the Board’s jurisdiction, despite 

detailed notice of his burden of proof in the acknowledgment order. See PFR 

File, Tab 1 at 4, 6; IAF, Tab 2 at 2, Tab 4. His argument on review that he 

applied for the vacancies as a noncompetitive preference eligible is immaterial to 

the jurisdictional question. See PFR File, Tab 1 at 5. The Standard Form 50 

submitted by the appellant indicates that he is not a veteran, and he has not 

alleged that the agency decision violated his veterans’ preference rights or was 

motivated by discrimination on the basis of his uniformed service. See IAF, 

Tab 1 at 1, 7. Thus, the record does not support a claim that the Board has 

jurisdiction over his appeal under the Veterans Employment Opportunities Act of 

1998 or the Uniformed Services Employment and Reemployment Rights Act of 

1994. 

¶9 The appellant does not allege that the agency’s decision was made in

retaliation for whistleblowing or that the Board has jurisdiction over his claim as 

an independent right of action (IRA) appeal. The Board has jurisdiction over an 

IRA appeal if the appellant exhausts his administrative remedies before the Office 

of Special Counsel (OSC) and makes nonfrivolous allegations that: (1) he made a 

disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in protected activity 

described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 

disclosure or protected activity was a contributing factor in the agency’s decision 

to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). 

5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs, 
6

242 F.3d 1367, 1371 (Fed Cir. 2001). In his initial appeal, the appellant reported 

that he had not filed a whistleblowing complaint with OSC. IAF, Tab 1 at 4. 

Although the appellant refers to communications with OSC on review, he does 

not allege he filed a complaint of whistleblower reprisal with OSC, or that he 

made any protected disclosure or engaged in whistleblowing activity. See PFR 

File, Tab 1 at 4.

¶10 On review, the appellant states that he is requesting a review of his 

prohibited personnel practice allegations because OSC informed him that the 

Board has “established certain requirements or elements for providing that a 

prohibited personnel practice may have occurred.” Id. He misinterprets this 

statement as proof that the Board has jurisdiction over his appeal. Allegations of 

prohibited personnel practices under 5 U.S.C. § 2302(b) or of a violation of the 

merit systems principles under 5 U.S.C. § 2301 are not an independent source of 

Board jurisdiction. See D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 48 

(1992); 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). 

¶11 Finally, we note that the appellant initially characterized his claim as an 

“employment practices appeal” on his appeal form, but he has not repeated this 

allegation on review. IAF, Tab 1 at 3; PFR File, Tabs 1, 4-5. In any event, the

record evidence demonstrates that the present appeal constitutes a challenge to an 

individual selection process for particular positions with the agency, and that the 

appellant has alleged no facts that would reasonably raise a claim that might be 

within the Board’s jurisdiction as an employment practices appeal. See Prewitt, 

133 F.3d at 887; 5 C.F.R. §§ 300.103-300.104, 1201.3(a)(7).

¶12 Thus, we find that, despite erroneously stating that the appellant had not 

responded to his order on the jurisdictional issue, the administrative judge 

correctly found that the Board lacks jurisdiction over the appellant’s allegation 

that the agency improperly excluded him from referral to the hiring official.
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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 an appeal to the 

United States 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 
8

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