NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DAVID M. SHIPP, 

Petitioner, 

v. 

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES, 

Respondent. 

__________________________ 

2012-3141 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in SF300A110321-I-1. 

___________________________ 

Decided: December 13, 2012 

___________________________ 

DAVID M. SHIPP, of Kent, Washington, pro se. 

ELLEN M. LYNCH, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With her on 

the brief were STUART F. DELERY, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, REGINALD T.

BLADES, JR., Assistant Director. 
DAVID SHIPP v. HHS 2

__________________________ 

Before LOURIE, BRYSON, and WALLACH, Circuit Judges. 

PER CURIAM. 

DECISION

David M. Shipp seeks review of a decision of the Merit 

Systems Protection Board denying his appeal of decisions 

by the Department of Health and Human Services 

(“HHS”) not to select him to fill any of five vacancies for 

which he applied. We affirm. 

BACKGROUND

Mr. Shipp was employed as a GS-12 chemist with 

HHS until November 24, 2006, when he was removed for 

unacceptable performance. Mr. Shipp appealed his 

removal, but his appeal was dismissed when the parties 

entered into a settlement agreement terminating the 

dispute. Mr. Shipp later expressed dissatisfaction with 

the terms of the settlement and petitioned the full Board 

for review of the initial decision that dismissed as settled 

his appeal from the agency’s removal action. On November 21, 2007, the full Board dismissed Mr. Shipp’s petition 

for review as untimely but forwarded his allegations of 

agency noncompliance with the settlement agreement to 

one of the Board’s regional offices to be docketed as a 

petition for enforcement of the settlement agreement. 

The regional office denied the petition for enforcement, 

and on July 3, 2008, the full Board denied Mr. Shipp’s 

petition for review of that decision. Although the Board’s 

November 21, 2007, order advised Mr. Shipp that if he 

wished to obtain review of that decision he needed to file a 

petition with this court within 60 days of receipt of the 

order, he did not file an appeal with this court during that 
3 DAVID SHIPP v. HHS

60-day period or within 60 days of the Board’s July 3, 

2008, order. 

In his informal brief, Mr. Shipp contends that he did 

not file a petition for review with this court because he 

had alleged that racial discrimination had played a role in 

his separation and because he believed that the fact that 

his claim was based in part on discrimination prohibited 

him from prosecuting an appeal to this court. Instead, 

Mr. Shipp filed a petition with the Equal Employment 

Opportunity Commission (“EEOC”) seeking review of the 

Board’s final order. On August 29, 2008, however, the 

EEOC ruled that it lacked jurisdiction over the Board’s 

enforcement decisions and therefore dismissed the petition. 

The EEOC informed Mr. Shipp in writing that he had 

30 days to file a civil complaint based on his allegations in 

federal district court. Following those instructions, as 

well as the Second Circuit’s decision in Downey v. 

Runyon, 160 F.3d 139 (2d Cir. 1998), which held that a 

district court could exercise jurisdiction to review a nonmerits decision of the Board, Mr. Shipp brought suit in 

the United States District Court for the Western District 

of Washington, challenging both the settlement agreement and his removal from federal service. The district 

court dismissed the complaint on March 2, 2009, and the 

Ninth Circuit affirmed the dismissal on the grounds that 

only this court has jurisdiction to review the Board’s 

dismissal of an untimely petition. Shipp v. Sebelius, 369 

Fed. Appx. 861 (9th Cir. 2010). The Supreme Court 

denied Mr. Shipp’s petition for a writ of certiorari on 

November 1, 2010. At no point did Mr. Shipp appeal the 

Board’s decision to this court. 
DAVID SHIPP v. HHS 4

At the time of the district court and Ninth Circuit decisions, a majority of the circuits, including this court, had 

held that a Board decision not reaching the merits of an 

underlying discrimination claim—such as a Board decision holding that an appeal was untimely or outside the 

Board’s jurisdiction—belonged in this court rather than in 

a federal district court. See Lang v. Merit Sys. Prot. Bd., 

219 F.3d 1345, 1347 n.2 (Fed. Cir. 2000); Austin v. Merit 

Sys. Prot. Bd., 136 F.3d 782, 784 (Fed. Cir. 1998). The 

Supreme Court, however, has recently held that such 

cases should be brought in the district courts, not in this 

court. Kloeckner v. Solis, No. 11-184 (Dec. 10, 2012). 

Meanwhile, between October and December of 2010, 

Mr. Shipp applied for five employment vacancies within 

HHS, including two openings for a chemist and three for 

an interdisciplinary scientist. When he was not selected 

for any of those positions, Mr. Shipp appealed to the 

Board, alleging that HHS had employed a “hidden” qualification requirement, namely that an applicant must have 

a Ph.D., in violation of 5 C.F.R. § 300.103. He also alleged 

racial discrimination and retaliation for filing an equal 

employment opportunity complaint. The appeal initially 

included a request to reopen his 2007 case, but Mr. Shipp 

withdrew that request after the Chief Administrative Law 

Judge informed him that a request to reopen had to be 

filed separately. 

As a preliminary matter, the Chief Administrative 

Law Judge found Mr. Shipp’s appeal untimely as to three 

of the vacancies, but found good cause to excuse the 

untimely filing. Mr. Shipp sought discovery regarding the 

performance of other candidates for those positions, as 

well as responses to interrogatories posed to several of 

HHS’s witnesses. Those requests followed significant 

discovery that had already been granted to Mr. Shipp. In 
5 DAVID SHIPP v. HHS

particular, HHS had disclosed a list of certified candidates along with their educational backgrounds and job 

experience. The Chief Administrative Law Judge denied 

the additional discovery requests. 

On the merits, the Chief Administrative Law Judge 

denied Mr. Shipp’s appeal with regard to each vacancy. 

As to one opening, Mr. Shipp had failed to submit a 

required form. Two other vacancies remained unfilled, 

and the Chief Administrative Law Judge concluded that 

HHS did not require applicants to have a Ph.D. to be 

considered for the final two positions. Mr. Shipp then 

petitioned the full Board for review, alleging that the 

Chief Administrative Law Judge had failed to consider his 

allegations of racial discrimination and retaliation. The 

Board denied his petition on March 30, 2012, noting that 

its jurisdiction under 5 C.F.R. § 300.104(a) extended only 

to improper employment practices applied to an applicant 

by the Office of Personnel Management (“OPM”) affecting 

the recruitment, measurement, ranking, and selection of 

individuals for employment, not to isolated incidents of 

alleged discrimination or retaliation. Mr. Shipp now 

timely appeals to this court. 

DISCUSSION

1. Mr. Shipp devotes much of his argument to disputing the Board’s 2007 decisions, rendered more than five 

years ago, regarding his separation and settlement 

agreement. This court lacks jurisdiction to consider those 

issues because Mr. Shipp “did not file a petition for review 

with this court within 60 days of the date he first received 

notice of the final order of the Board.” Oja v. Dep't of the 

Army, 405 F.3d 1349, 1350 (Fed. Cir. 2005); see 5 U.S.C. 

§ 7703(b)(1). 
DAVID SHIPP v. HHS 6

Mr. Shipp contends that he did not realize the Board’s 

2007 decision dismissing his appeal as settled was final 

because it forwarded his complaints to be docketed as a 

petition for enforcement to the regional office, which in 

turn considered and acted on the petition. He further 

argues that, because his objections to his separation and 

the resulting settlement agreement involved allegations 

of racial discrimination, he reasonably believed it was 

proper to pursue his complaint through the EEOC and 

then the district court.1 He points to Rule 15(c) of this 

court’s Rules of Practice, which deters petitioners from 

filing appeals containing discrimination claims to this 

court. He argues that HHS validated his belief by failing 

to promptly challenge the EEOC’s jurisdiction over his 

complaint. By the time the EEOC dismissed Mr. Shipp’s 

complaint, the 60-day period for him to appeal to this 

court had almost run out. He therefore requests that this 

court treat the deadline set by section 7703(b)(1) as equitably tolled. 

However, “the time period prescribed by section 

7703(b)(1) cannot be tolled.” Oja, 405 F.3d at 1357. That 

“period for appeal is statutory, mandatory, [and] jurisdictional.” Monzo v. Dep't of Transp., 735 F.2d 1335, 1336 

(Fed. Cir. 1984). Moreover, even if this court could toll the 

deadline, and even if we accepted Mr. Shipp’s explanation 

as true, he has not provided good cause for his delay. The 

Board explicitly notified him in writing that, if he desired 

judicial review of its 2007 decision, he was required to 

petition this court “no later than 60 calendar days after” 

the Board’s decision became final. In addition, even after 

the district court and the Ninth Circuit dismissed his 

 1 Indeed, the Supreme Court’s decision in Kloeckner 

v. Solis strengthens Mr. Shipp’s argument that his belief 

was reasonable even at the time. 
7 DAVID SHIPP v. HHS

case, Mr. Shipp still did not appeal the Board’s original 

2007 decision to this court. Instead, he applied for five 

new positions and appealed the resulting adverse decisions, only then adding to that appeal the claims in which 

he sought to challenge his original separation and settlement agreement. Because the time period to appeal the 

Board’s 2007 decision has long since expired, the court 

lacks jurisdiction to consider Mr. Shipp’s objections. 

Finally, the Supreme Court’s recent decision in 

Kloeckner v. Solis makes clear that even if Mr. Shipp’s 

effort to appeal to this court from the Board’s decision 

regarding his removal and the ensuing settlement agreement were not time-barred, this court would still lack 

jurisdiction to hear that appeal because it raises a discrimination claim. For all those reasons, Mr. Shipp’s 

2007 appeal is not properly before this court. 

2. With respect to his challenge to his nonselection 

for any of the five employment positions with HHS, Mr. 

Shipp asserts two errors. First, he argues that the Chief 

Administrative Law Judge improperly denied his discovery requests. Second, he maintains that the Board erred 

in finding that it lacked jurisdiction over his allegations of 

racial discrimination and retaliation. 

The Board's rulings on discovery issues are reviewed 

for abuse of discretion. Kirkendall v. Dep't of the Army, 

573 F.3d 1318, 1321 (Fed. Cir. 2009). Mr. Shipp cannot 

prevail on his discovery claim “unless [the] abuse of 

discretion is clear and is harmful.” Curtin v. Office of 

Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.Cir.1988). The 

Board did not abuse its discretion in denying Mr. Shipp’s 

discovery requests. The requests sought information 

regarding the relative merits of the other candidates who 

applied to fill the five vacancies. HHS had already pro-
DAVID SHIPP v. HHS 8

vided Mr. Shipp with a list of the candidates who were 

certified as eligible for the positions, along with each 

candidate’s educational background and prior job experience, but Mr. Shipp also requested the candidates’ responses to HHS’s online questionnaires and interview 

questions. The Chief Administrative Law Judge did not 

abuse her discretion in concluding that those additional 

requests were not designed to prove the alleged Ph.D. 

requirement at issue, but rather to determine whether 

the other applicants were more qualified than Mr. Shipp. 

Because the Board’s jurisdiction is limited to considering 

employment practices in general, not HHS’s conduct in 

Mr. Shipp’s specific case, the question of whether certain 

applicants were more qualified overall was irrelevant. 

The Chief Administrative Law Judge acted well within 

her discretion in ruling that those requests were not 

reasonably calculated to discover admissible evidence 

regarding the alleged Ph.D. requirement. See 5 C.F.R. 

§ 1201.72. Mr. Shipp also sought to pose interrogatories 

to several of HHS’s witnesses, but he did not identify any 

relevant topic that those interrogatories would explore or 

any admissible evidence they might uncover. The Chief 

Administrative Law Judge therefore properly denied 

those requests. 

Second, Mr. Shipp argues that the Board had jurisdiction over his racial discrimination and retaliation claims 

and should have ruled on them. As a general matter, 

however, an agency's failure to select an applicant for a 

vacant position is not appealable to the Board. Prewitt v. 

Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). 

Mr. Shipp claims an exception to that general principle 

because he alleges he was the victim of racial discrimination and retaliation for lodging an equal employment 

opportunity complaint against HHS. The Board, however, correctly concluded that the alleged discrimination 
9 DAVID SHIPP v. HHS

and retaliation, even if accepted as true, would amount 

only to an isolated incident affecting Mr. Shipp individually. “[A]n 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 ‘employment practice.’” Id. at 

887; see 5 C.F.R. § 300.104. Mr. Shipp has not identified 

a policy of discrimination or retaliation promulgated by 

OPM or practiced by HHS, so the Board correctly held 

that it lacked jurisdiction over his retaliation and discrimination claims. 

To the extent Mr. Shipp challenges the Chief Administrative Law Judge’s decision on the merits regarding 

each of the five vacancies, those rulings were supported 

by substantial evidence. Mr. Shipp’s failure to submit a 

required form, not any hidden employment practice, 

disqualified him from one vacancy. Nor did he identify a 

hidden employment qualification regarding the two 

vacancies that were not even filled. As to the final two 

positions, the Chief Administrative Law Judge credited 

the testimony of an OPM human resources specialist who 

testified that there was no requirement that an applicant 

have a Ph.D., and that OPM used the position description, 

normal qualification standards, and other openly considered evaluative tools to fill the positions at issue. Finding 

no error on any issue over which we have jurisdiction, we 

sustain the Board’s decision. 

No costs. 

AFFIRMED