                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL A. NICHOLS,                             DOCKET NUMBER
                   Appellant,                        AT-3443-14-0159-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: October 16, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Paul G. Miranne, Pensacola, Florida, for the appellant.

           Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
¶2         The appellant filed an initial appeal pursuant to 5 C.F.R. § 300.104(a)
     challenging the agency’s development and use of the scoring criteria used to fill
     several positions within the agency’s Naval Education and Training Professional
     Development and Technology Center. Initial Appeal File (IAF), Tabs 1, 5. The
     administrative judge issued a jurisdictional order outlining the appellant’s burden
     to establish the Board’s jurisdiction over an employment practices appeal under
     5 C.F.R. part 300, IAF, Tab 3, and in response, the appellant alleged that the
     agency failed to use a professionally-developed job analysis in the course of
     establishing the scoring criteria used for two job postings, thus resulting in “little
     relevance between the scoring criteria . . . and the requirements of the position,”
     IAF, Tab 5 at 7.     In his response, the appellant also alleged that the agency
     developed the scoring criteria in a discriminatory fashion under 5 C.F.R.
     § 300.103(c) in order to favor a particular female candidate. Id.
¶3         The administrative judge issued an initial decision dismissing the
     appellant’s employment practices appeal for lack of jurisdiction.        IAF, Tab 7,
     Initial Decision (ID). In his initial decision, the administrative judge found that
     the appellant’s statements that the agency failed to perform a proper job analysis,
                                                                                           3

     alone, did not constitute nonfrivolous allegations that the challenged action was
     an employment practice under 5 C.F.R. § 300.104(a), and he further explained
     that an appellant’s statements, without additional support, usually do not
     constitute nonfrivolous allegations which can establish the Board’s jurisdiction.
     ID at 4.
¶4         The appellant has filed a petition for review arguing that the agency failed
     to comply with 5 C.F.R. § 1201.25, which requires the agency to submit an
     agency file with all of the relevant information and that, had the agency complied
     with this requirement, it would have included a full copy of the report of
     investigation (ROI) developed by the agency in response to the appellant’s equal
     employment opportunity (EEO) complaint. 2          Petition for Review (PFR) File,
     Tab 1 at 2-4.   On review, the appellant also challenges the sufficiency of the
     administrative judge’s order explaining his burden to establish jurisdiction over
     his appeal, and he further asserts that he intended to use the Board’s discovery
     procedures in order to establish the Board’s jurisdiction. Id. at 8, 10. The agency
     has filed a response to the appellant’s petition for review. PFR File, Tab 3.
¶5         The Board has jurisdiction over an employment practices appeal pursuant
     to 5 C.F.R. § 300.104(a) when two conditions are met: first, the appeal must
     concern an employment practice that the Office of Personnel Management (OPM)
     is involved in administering; and second, the employment practice must be
     alleged to have violated one of the “basic requirements” for employment practices
     set forth in 5 C.F.R. § 300.103. Scott v. Department of Justice, 105 M.S.P.R.
     482, ¶ 10 (2007).     OPM, however, need not be immediately involved in the
     practice in question, and an agency’s misapplication of a valid OPM requirement
     may constitute an appealable employment practice action.           Id.; see Prewitt v.

     2
       The appellant commenced the instant proceeding by filing an EEO complaint with the
     agency and filing a Board appeal following the issuance of a final agency decision.
     IAF, Tab 1; see 5 C.F.R. § 1201.154(b). The administrative judge did not address the
     issue of the timeliness of the appellant’s appeal below; we also do not reach this issue
     on review. See ID at 5 n.4.
                                                                                      4

     Merit Systems Protection Board, 133 F.3d 885, 888 (Fed. Cir. 1998).
     Importantly, although our reviewing court has emphasized that the term
     “employment practice” is to be construed broadly, such breadth does not cover
     “an individual agency action or decision that is not made pursuant to or as part of
     a rule or practice of some kind.”     Prewitt, 133 F.3d at 887 (citing Saya v.
     Department of the Air Force, 68 M.S.P.R. 493, 496 (1995)).
¶6        We concur with the administrative judge that the appellant has failed to
     establish the Board’s jurisdiction under 5 C.F.R. § 300.104(a).        The record
     reflects that the appellant is challenging the individual selection and scoring
     criteria developed by the agency, which is unique to a particular position within
     the agency. IAF, Tab 5 at 7. Based on the evidence in the record, we agree with
     the administrative judge that the appellant’s challenge to the agency’s action is
     better categorized “as an irregularity in the selection process rather than an
     application of a specific rule, provision, or policy by the agency.” See Prewitt,
     133 F.3d at 887. Thus, differing from cases where an agency has applied OPM’s
     time-in-grade restrictions, or where OPM changed the scoring formula used to
     score administrative law judge examinations, see, e.g., Chadwell v. Merit Systems
     Protection Board, 629 F.3d 1306, 1311 (Fed. Cir. 2010) (summarizing cases
     involving appealable employment practices), here, the appellant is challenging
     the agency’s individualized decision to select another candidate for a particular
     position of employment, IAF, Tab 5 at 7 (arguing that the selection criteria was
     improperly designed to favor a single applicant). Such a challenge to an agency’s
     individualized hiring decision falls outside of the Board’s appellate jurisdiction
     under 5 C.F.R. § 300.104(a).     See Prewitt, 133 F.3d at 887 (holding that the
     agency’s action, specific to the appellant, was not an employment practice under
     5 C.F.R. part 300); see also Dow v. General Services Administration, 590 F.3d
     1338, 1343 (Fed. Cir. 2010) (finding that an agency’s decision not to select an
     employee because it found the employee unsuitable was not an appealable
     employment practice).
                                                                                       5

¶7        We further find that there is no evidence in the record to support the second
     jurisdictional element of the appellant’s employment practices appeal, i.e., that
     OPM was involved in the administration of the practice at issue. See Prewitt,
     133 F.3d at 887-88. In Prewitt, the Federal Circuit found that the appellant failed
     to allege that “OPM was involved in . . . the establishment of allegedly improper
     minimum qualifications for the position for which he applied.”          Id. at 888.
     Similar to Prewitt, we find that the appellant has failed to allege that OPM was
     involved in the agency’s allegedly improper development of the scoring criteria
     used to select a female candidate over the appellant. See, e.g., IAF, Tab 5 at 7
     (appellant’s argument that the agency’s misapplication of 5 C.F.R. §§ 300.102
     and 300.103 demonstrates the agency’s misapplication of a valid OPM
     requirement). The appellant’s bare assertion that the agency misapplied OPM’s
     regulatory requirement that a job analysis be used to identify the basic duties and
     responsibilities of the position, without more, fails to nonfrivolously establish
     how the agency’s job analysis is deficient or how the agency misapplied those
     standards. See Scott, 105 M.S.P.R. 482, ¶ 11 (noting that the appellant did not
     specifically identify which basic requirement she believed the agency violated
     and how that requirement might have been violated, but remanding to the
     administrative judge for additional notice of the jurisdictional elements of an
     employment practices appeal).
¶8        We further find unpersuasive the appellant’s reliance on Holse v.
     Department of Agriculture, 97 M.S.P.R. 624 (2004), and his argument that he did
     not receive proper notice from the administrative judge concerning his
     jurisdictional burden.   The record demonstrates that the administrative judge
     outlined the pertinent standards needed to establish the Board’s jurisdiction over
     an employment practices appeal and that he provided the appellant with the
     definition of a nonfrivolous allegation. IAF, Tab 3. We therefore find misplaced
     the appellant’s reliance on Holse, which remanded the initial appeal to the
     administrative judge for a full explanation of the jurisdictional standard needed to
                                                                                     6

establish an employment practices appeal under Burgess v. Merit Systems
Protection Board, 758 F.2d 641 (Fed. Cir. 1985). Here, the appellant received
the proper notice to establish the Board’s jurisdiction over his alleged
employment practices appeal under 5 C.F.R. part 300, and based on the
appellant’s allegations, we agree with the administrative judge that the appellant
failed to nonfrivolously allege an appealable employment practices appeal.
Similarly, because the appellant bears the burden of establishing the Board’s
jurisdiction over his appeal, we find no error in the agency’s alleged failure to
comply with 5 C.F.R. § 1201.25. 3 See 5 C.F.R. § 1201.56(a)(2)(i) (the appellant
bears the burden of proof on issues of jurisdiction).

                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).


3
  The appellant, for example, presumably had a copy of the agency’s ROI and could
have submitted portions of it in response to the administrative judge’s jurisdictional
order. Moreover, to the extent that the appellant is challenging the sufficiency of the
agency’s investigation into his complaint of discrimination, the Board is without
authority to review the substance of these allegations in this case.
                                                                                  7

     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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
