                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RENEE HART,                                     DOCKET NUMBER
                         Appellant,                  DA-3443-15-0472-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: January 21, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Renee Hart, Battle Creek, Michigan, pro se.


                                           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 her nonselection 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 regulation or the erroneous application of the law to
     the facts of the case; the administrative judge’s rulings during either the course of

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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 find that the Board does not have
     jurisdiction over an employment practices claim, we AFFIRM the initial decision.
¶2             The appellant is a GS-11 Contract Specialist for the Defense Logistics
     Agency. Initial Appeal File (IAF), Tab 1 at 7. In April 2015, she applied for a
     GS-12 Contract Administrator position at the Defense Contract Management
     Agency (the agency).           Id. at 8-15.   On July 1, 2015, the agency informed the
     appellant that she had not been selected for the position because she had
     withdrawn herself from further consideration. Id. at 14-15.
¶3             The appellant subsequently filed an appeal with the Board and requested a
     hearing. Id. at 1-6. She disputed that she had withdrawn herself from further
     consideration and asserted that her nonselection was unlawful and discriminatory.
     Id. at 5.        In an acknowledgment order, the administrative judge informed the
     appellant that the Board may not have jurisdiction over her nonselection appeal.
     IAF, Tab 2 at 2. She advised the appellant that the Board generally lacks the
     authority to address a nonselection claim except where the unsuccessful candidate
     alleges that the agency’s decision was made in retaliation for whistleblowing, the
     product of discrimination based on uniformed service, or in violation of her
     veterans’ preference rights. Id. She ordered the appellant to file evidence and
     argument on the jurisdictional issues. Id. After receiving no response from the
     appellant, the administrative judge issued an order to show cause further
     explaining the appellant’s burden of proving the Board’s jurisdiction over her
                                                                                            3

     appeal and ordering her to show cause why her appeal should not be dismissed for
     lack of jurisdiction. IAF, Tab 4 at 1-2. She advised the appellant that her failure
     to respond to the order would result in the dismissal of the appeal. Id. at 2-3.
     The appellant did not respond. IAF, Tab 5, Initial Decision (ID) at 3.
¶4         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction.          ID at 1, 3-4.
     Specifically, she found that the Board lacks jurisdiction over the appellant’s
     nonselection for the Contract Administrator position, and also found that the
     Board lacked jurisdiction over any claims of harmful error, prohibited personnel
     practices, or discrimination absent an otherwise appealable action. ID at 3-4.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has not filed a response.
¶6         In her petition for review, the appellant states that she did not intend to
     ignore the administrative judge’s orders, but was out of the office for surgery and
     recovery and then had difficulty accessing her e-Appeal account. Id. at 3-4. She
     also disputes the administrative judge’s finding that the Board lacks jurisdiction
     over her appeal and asserts that the Board has jurisdiction over unfair and
                                              2
     discriminatory employment practices.         Id. at 5. Specifically, she alleges that the

     2
       To the extent that the appellant is asserting an employment practices claim under
     5 C.F.R. § 300.104(a), we modify the initial decision to find that she has failed to
     nonfrivolously allege that the Board has jurisdiction over this claim because she
     does not allege that the Office of Personnel Management (OPM) was involved in her
     nonselection, a prerequisite for such a claim. See, e.g., Prewitt v. Merit Systems
     Protection Board, 133 F.3d 885, 887-88 (Fed. Cir. 1998) (finding that the appellant
     failed to establish the Board’s jurisdiction over his employment practices claim because
     he did not show OPM’s “significant” involvement in the selection process). Instead,
     she alleges that the agency improperly advised OPM that she had withdrawn her
     application. IAF, Tab 1 at 5, 14-15. Ordinarily, an appellant must receive explicit
     information on what is required to establish an appealable jurisdictional issue.
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).
     Here, however, the appellant did not assert an employment practices claim that would
     have required the administrative judge to have provided her with such notice. Cf.
     Parker v. Department of Housing and Urban Development, 106 M.S.P.R. 329, ¶¶ 7-9
     (2007) (remanding the appellant’s appeal for jurisdictional notice on and adjudication
                                                                                             4

     agency discriminated against her based on her age and failed to: afford her the
     priority consideration to which she claims she was entitled; prove that she was
     fairly rated for employment; and respond to her request for feedback on the
     decision process. Id. at 4-5. In support of her arguments, she submits evidence
     of a prior inquiry that she made with the agency into the reason why she was not
     considered for a different Contract Administrator position. Id. at 6-10. She also
     submits letters from the agency dated March 18, 2014, advising her of her
     entitlement to priority consideration for future Contract Specialist and Contract
     Administrator positions. Id. at 11-13.
¶7         We find that the appellant’s arguments on review do not provide a reason to
     disturb the initial decision. The appellant has the burden of proving the Board’s
     jurisdiction by a preponderance of the evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(A).
     Generally, if an appellant makes a nonfrivolous allegation 4 of Board jurisdiction
     over an appeal, she is entitled to a jurisdictional hearing.              See Garcia v.
     Department of Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006)
     (en banc). 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 generally lacks
     jurisdiction over an employee’s nonselection for a position.                   Becker v.
     Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007).               Despite the
     general lack of jurisdiction, however, an employee may appeal her nonselection
     by other statutory means, such as under the Veterans Employment Opportunities
     Act, under the Uniformed Services Employment and Reemployment Rights Act,

     of his employment practices claim where the appellant explicitly raised this claim
     below).
     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     4
       A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
     issue. 5 C.F.R. § 1201.4(s).
                                                                                       5

     or through an individual right of action appeal if she claims retaliation for
     whistleblowing.         See id., ¶¶ 5-6, 9, 12 (addressing a nonselection for a
     promotion claim).
¶8         Here, the appellant has indicated that she is not eligible for veterans’
     preference and has not claimed any military service or whistleblowing.         IAF,
     Tab 1 at 1, 4-5.         Further, the appellant’s claims of harmful error, age
     discrimination, and prohibited personnel practices do not alter the conclusion that
     the Board lacks jurisdiction over her nonselection.       See Penna v. U.S. Postal
     Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that the Board lacks jurisdiction
     over an appellant’s harmful error claim absent an appealable underlying action);
     Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012)
     (finding that the Board does not have jurisdiction over discrimination claims
     absent an otherwise appealable action); Wren v. Department of the Army,
     2 M.S.P.R. 1, 2 (1980) (finding that prohibited personnel practices under 5 U.S.C.
     § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
     867 (D.C. Cir. 1982).
¶9         For these reasons, we agree with the administrative judge’s finding that the
     Board lacks jurisdiction over the appellant’s nonselection appeal and we affirm
     the initial decision.

                       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 review of this final decision by the U.S. Court of Appeals for the Federal
     Circuit. You must submit your request to the court at the following address:
                                     U.S. Court of Appeals
                                     for the Federal Circuit
                                    717 Madison Place, N.W.
                                     Washington, DC 20439
                                                                                  6

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 U.S. 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 U.S. 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 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
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.
