UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL COUGHLIN,

Appellant,

v.

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT,

Agency.

DOCKET NUMBER

PH-3443-17-0002-I-1

DATE: January 31, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael Coughlin, Groveland, Massachusetts, pro se.

Eric D. Batcho, Esquire, Boston, Massachusetts, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his nonselection and employment practices appeal for lack of 

jurisdiction. Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fact; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

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 administrative 

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. 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, 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). 

¶2 At all times relevant to the present appeal, the appellant was a 

preference-eligible veteran employed by the agency as a General Engineer. 

Initial Appeal File (IAF), Tab 1 at 1. He applied for a Program Analyst position 

and was referred to the selecting official on the certificate of competitive-eligible 

candidates, but the agency did not grant him an interview. IAF, Tab 7 at 17-29. 

The appellant filed a grievance, alleging discrimination based on gender in the 

selection process, which the agency denied at the Step 1 and Step 2 levels. IAF,

Tab 1 at 7-12. He subsequently filed an appeal with the Board. Id. at 1-5. 

Without holding the requested hearing, the administrative judge issued an initial 

decision dismissing the appeal for lack of jurisdiction, finding that the appellant 

had not raised nonfrivolous2allegations that the appeal fell within one of the 

exceptions to the general rule that nonselection decisions are not appealable to the 

Board. IAF, Tab 17, Initial Decision (ID) at 1, 4, 10. 

¶3 On petition for review, the appellant argues for the first time that “the 

agency had a “pattern of selecting female candidates over [him]” and sets forth 

 

2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at 

issue. 5 C.F.R. § 1201.4(s).
3

information regarding six positions for which he applied but was not selected 

between April 2015 and November 2016. Petition for Review (PFR) File, Tab 1 

at 6-8. He asserts that this “new evidence” demonstrates that the agency had a 

“discriminatory hiring practice based on gender,” and he provides copies of 

various applications he submitted through USA Jobs during this same time 

period. Id. at 8, 11-21. The appellant also raises two allegations of retaliation for 

the first time. Id. at 9. He alleges that, “a few hours” after the Step 2 grievance 

decision, his workload was drastically reduced and that his nonselection for a 

separate Management Analyst position was retaliation by the selecting official 

who served as the deciding official in the Step 2 nonselection grievance. Id. The 

appellant submits documents identifying the division of work amongst individuals 

in his office, as well as email correspondence with an agency official in which he 

expressed his frustration at not being chosen to take on certain projects. Id.

at 22-47. The appellant states that he “did not produce this material evidence and 

legal argument in previous filings” because he believed that “those hiring 

decisions were irrelevant to the challenged hire,” but that the initial decision 

made it “apparent that the only way to challenge an individualized hiring decision 

as an employment practice was to make a new argument on selection history and 

workloads before and after the challenged position.” Id. at 10. 

¶4 The Board generally will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. 

§ 1201.115(d). To constitute new and material evidence, the information 

contained in the documents, not just the documents themselves, must have been 

unavailable despite due diligence when the record closed. Grassell v. Department 

of Transportation, 40 M.S.P.R. 554, 564 (1989). The appellant has not made 

such a showing regarding his allegations of a discriminatory pattern of hiring or 

retaliation he raises for the first time on review. The evidence that the appellant 
4

submits for the first time on review is not new, as all of the documents and 

underlying information contained therein predate the close of the record below, 

including evidence concerning his USA Jobs application history and alleged 

changes in workload after the denial of the Step 2 grievance. See Avansino v. 

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (stating that, under 5 C.F.R. 

§ 1201.115, the Board ordinarily 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). 

¶5 In any event, the appellant’s new arguments are not a source of Board 

jurisdiction. As stated in the administrative judge’s acknowledgment order and 

initial decision, nonselections generally are not appealable to the Board. IAF, 

Tab 2 at 2-4; ID at 4. The initial decision correctly explained that the Board 

lacks jurisdiction over discrimination claims, either concerning an individual 

event or a pattern, as alleged by the appellant on review, absent an otherwise 

appealable action. ID at 8-9; see 5 U.S.C. § 7702(a)(1); Pridgen v. Office of 

Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012). Prohibited personnel 

practices under 5 U.S.C. § 2302(b) are not an independent source of Board 

jurisdiction.3 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). Further, absent an otherwise appealable 

action, the Board lacks jurisdiction over the appellant’s repeated claim that the 

agency committed harmful procedural error by failing to follow the governing 

collective bargaining agreement or agency hiring policy. ID at 9; PFR File, Tab 1 

at 8-9; see Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012). 

¶6 To the extent that the appellant argues on review that his allegation of a 

pattern of discriminatory hiring is the “only way to challenge an individualized 

hiring decision as an employment practice,” PFR File, Tab 1 at 10, the appellant 

 

3 Despite notice and opportunity, the appellant has not alleged any facts that might 

implicate jurisdiction over this matter as an individual right of action appeal. IAF,

Tab 2 at 4-5; see 5 U.S.C. §§ 1214(a)(3), 1221.
5

mischaracterizes the administrative judge’s findings in the initial decision. 

Although a nonselection is not an appealable adverse action pursuant to 5 U.S.C. 

chapter 75, the Board may address a nonselection in the context of a claim that an 

employment practice that was applied to the appellant by the Office of Personnel 

Management (OPM) violated a basic requirement set forth at 5 C.F.R. § 300.103. 

Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 887 (Fed. Cir. 1998); 

5 C.F.R. § 300.104(a). The administrative judge properly addressed the 

appellant’s employment practice claim, finding that the appellant’s allegations 

concerned an “individualized hiring decision” and not an employment practice 

that OPM was involved in administering. ID at 5-8. On review, the appellant 

does not dispute these findings, and we discern no error in the administrative 

judge’s analysis. 

¶7 Accordingly, we deny the petition for review and affirm the initial decision.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

Please read carefully each of the three main possible choices of revi ew 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 
7

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
8

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board