                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROLANDO R. JIMENEZ,                             DOCKET NUMBER
                   Appellant,                        DC-3443-14-0504-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 21, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rolando R. Jimenez, Silver Spring, Maryland, pro se.

           Lisa A. Bernstein, Esquire, New York, New York, 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant, a GS-14 Immigration Officer, filed an appeal with the Board
     alleging that the agency discriminated against him based on race and national
     origin and retaliated against him for current or prior equal employment
     opportunity (EEO) activity when: (1) agency officials did not interview or select
     him for one of three supervisory positions; (2) he had to involuntarily withdraw
     his application for another position because two agency officials joined the
     interview panel to discriminate against him and take reprisal against him; (3) the
     agency’s chief security officer failed to issue a final decision on his request for
     review of a denial for access to Sensitive Compartmented Information (SCI); and
     (4) agency officials did not select him for details requiring Top Secret/SCI
     clearance, and he was deterred from applying for such positions.         See Initial
     Appeal File (IAF), Tab 1 at 1-3; see also id. at 8-11.
¶3         In an acknowledgment order, the administrative judge notified the appellant
     that the Board may not have jurisdiction over his nonselection claims and
     provided the three exceptions to the general rule that an unsuccessful candidate
                                                                                        3

     for a civil service job has no right to appeal his nonselection to the Board. IAF,
     Tab 2 at 2-3. The appellant responded but did not assert that he met any of the
     three exceptions. See IAF, Tab 6. In an initial decision dated May 6, 2014, the
     administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 11,
     Initial Decision (ID).
¶4         Over 10 months later, on March 16, 2015, the appellant submitted a
     “Pleading for Due Process Regarding the Initial Decision.” Petition for Review
     (PFR) File, Tab 1.       Therein, he claimed that he never received a copy of the
     initial decision and that he only became aware that a decision had been issued
     when, on February 21, 2015, he received the Board’s final order in a separate
     appeal, which mentioned that the initial decision in this appeal had been issued on
     May 6, 2014, and became final on June 10, 2014, after neither party filed a
     petition for review.     Id. at 1-2; see also Jimenez v. Department of Homeland
     Security, MSPB Docket No. DC-3443-14-0868-I-1, Final Order at 3 n.2 (Feb. 19,
     2015). The Clerk of the Board advised the appellant that it was not clear if his
     March 16, 2015 correspondence was intended as a petition for review of the
     initial decision and allowed him an opportunity to clarify his intention.       PFR
     File, Tab 2. He submitted a new document styled as a petition for review, which
     the Clerk of the Board rejected because it exceeded the page limit set forth in the
     Board’s regulations. See PFR File, Tab 3; see also 5 C.F.R. § 1201.114(h). He
     then submitted a corrected petition for review, which the Board received on April
     16, 2015. PFR File, Tab 4 at 1.        The agency responded in opposition to the
     petition for review, arguing, inter alia, that it should be dismissed as it was
     untimely filed by nearly a year. PFR File, Tab 7 at 8-11. The appellant replied to
     the agency’s opposition, asserting again that he did not receive the initial decision
     and arguing that he had “exercised due diligence or ordinary prudence under the
     particular circumstances of this instant case.” PFR File, Tab 8 at 8-9.
¶5         A petition for review generally must be filed within 35 days after the date
     of the issuance of the initial decision or, if the appellant shows that the initial
                                                                                            4

     decision was received more than 5 days after it was issued, within 30 days after
     he received it. 5 C.F.R. § 1201.114(e). The Board will waive this time limit only
     upon a showing of good cause for the delay in filing.           5 C.F.R. §§ 1201.12,
     1201.114(g).
¶6         Assuming, without deciding, that the appellant can establish good cause for
     his untimely filed petition for review, we find that he has established no basis to
     disturb the initial decision. On review, the appellant argues again that the agency
     violated the merit systems principles by not selecting him for various positions
     and details; by causing him to involuntarily withdraw his application for another
     position because of a perceived conflict of interest with two of the individuals on
     the interview panel who he had previously filed discrimination complaints
     against; and by advertising a detail that required a Top Secret/SCI clearance and
     then selecting at least one candidate without a Top Secret/SCI clearance, while
     the appellant did not apply for the position because he had only a Top Secret
     clearance. 2 See id. at 12-35.
¶7         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.           Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).            The Board lacks direct
     jurisdiction under 5 U.S.C. § 7512 over an employee’s nonselection for a
     position. See Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5
     (2007). As the administrative judge informed the appellant, despite the general
     lack of Board jurisdiction, an appellant may appeal a nonselection by other
     statutory means, such as the Veterans Employment Opportunities Act of 1998
     (VEOA) or the Uniformed Services Employment and Reemployment Rights Act

     2
       The appellant does not appear to renew his allegation that the agency discriminated
     and retaliated against him by failing to issue a final decision after he requested review
     of its security clearance determination. See PFR File, Tabs 4, 8. In any event, the
     administrative judge correctly found that the Board lacks jurisdiction to consider the
     merits of an agency’s determination of access to classified information. ID at 4;
     Gargiulo v. Department of Homeland Security, 727 F.3d 1181, 1186 (Fed. Cir. 2013).
                                                                                          5

     of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA), or through an
     individual right of action (IRA) appeal. See Becker, 107 M.S.P.R. 327, ¶ 5; IAF,
     Tab 2 at 2-3. Here, the appellant has not raised claims under VEOA or USERRA
     and has failed to establish Board jurisdiction over an IRA appeal, which requires,
     inter alia, exhaustion of administrative remedies before Office of Special Counsel
     (OSC). See Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
     Cir. 2001). Although the appellant claims that he exhausted his administrative
     remedies by contacting the OSC on multiple occasions and provides copies of
     OSC correspondence, there is no evidence that he exhausted his administrative
     remedies in connection with the allegations raised in this appeal. 3        PFR File,
     Tab 4 at 12, 38-48.       Thus, the appellant has not shown that he made a
     nonfrivolous allegation of jurisdiction over his nonselection appeal based on any
     of the exceptions to the general rule stated above.
¶8         Furthermore, the appellant’s remaining claims that the agency violated the
     merit system principles and committed various prohibited personnel practices do
     not alter the conclusion that the Board lacks jurisdiction over this appeal. As
     correctly noted by the administrative judge, absent an otherwise appealable
     action, the Board lacks jurisdiction over claims of prohibited personnel practices
     under 5 U.S.C. § 2302(b). See Penna v. U.S. Postal Service, 118 M.S.P.R. 355,
     ¶ 13 (2012). The merit system principles are also not an independent source of
     Board jurisdiction.   Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 15
     (2007).




     3
      Based on OSC’s October 21, 2014 preliminary determination letter, it appears that the
     appellant, in his OSC complaint, alleged that the agency failed to pay him for overtime
     worked, that he was not afforded an opportunity to do a 30-day rotation to a higher-
     graded position, and that the agency failed to give him a mid-year performance review.
     PFR File, Tab 4 at 47.
                                                                                  6

                 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.
                                                                               7

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:                       ______________________________
                                     William D. Spencer
                                     Clerk of the Board

Washington, D.C.
