                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PATRICK A. LAKE,                                 DOCKET NUMBER
                   Appellant,                         CH-1221-14-0645-W-1

                  v.

     DEPARTMENT OF AGRICULTURE,                       DATE: April 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Patrick A. Lake, Omro, Wisconsin, pro se.

           Shelli Moore, Huron, South Dakota, 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 the appeal for lack of jurisdiction. 2 Generally, we grant petitions such

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 first page of the initial decision states that the administrative judge denied the
     appellant’s request for corrective action. Initial Appeal File (IAF), Tab 12, Initial
     Decision (ID) at 1. The case, however, turned on her findings regarding the Board’s
     jurisdiction. See ID at 4-13.
                                                                                        2

     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
     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 alleged that the agency improperly disqualified him from
     consideration for two vacancies; reassigned him from the GS-0457 series to the
     GS-0343 series; and retaliated against him for whistleblowing and for filing a
     grievance.        IAF, Tab 1 at 2, 5. He also asserted an employment practices
     claim. Id. at 5. He is at present a Soil Conservationist, GS-0457-09, with the
     Natural Resources Conservation Service in Oshkosh, Wisconsin. IAF, Tab 11 at
     16. Because he did not request a hearing, the administrative judge adjudicated
     the appeal on the written record and dismissed it for lack of jurisdiction. IAF,
     Tab 1 at 1;ID at 13.
¶3        The agency selected the appellant for a position in the GS-0457 Soil
     Conservation series in 2003. IAF, Tab 11 at 12. In 2010, he applied for the
     position     of     District   Conservationist,   GS-0457-11,   in   Fond   du   Lac,
     Wisconsin. Id. The agency found him ineligible for the position because he did
     not meet the educational requirements. Id. The agency found he had completed
     only six of the twelve semester hours in the study of soils, crops or plant science
                                                                                          3

     required for the position. 3 Id.    He was also not selected for another District
     Conservationist vacancy during the same time period. IAF, Tab 1 at 13. The
     appellant grieved the finding that he was ineligible for consideration, asking the
     agency to recognize his current level of education, experience, and qualifications
     as meeting the basic requirements for the GS-0457 series. See IAF, Tab 7 at 14.
     The Wisconsin State Conservationist denied his grievance and offered to pay for
     coursework that would allow him to qualify for the series if he did so within 1
     year. Id. at 14-15.
¶4         The appellant, however, did not enroll in the courses. IAF, Tab 11 at 12.
     Effective July 3, 2011, the agency reassigned him from his position in the
     GS-0457 series to a Program Analyst, GS-0343-09, position. Id. at 12, 20. He
     was also geographically reassigned to Appleton, Wisconsin, a few weeks
     later. Id. at 19.
¶5         In early 2012, the appellant submitted letters to the agency from two of his
     former college professors stating that the geography and geology classes he had
     completed in 1991 and 1992, respectively, included content on the physical,
     chemical, and biological properties of soil. See IAF, Tab 7, Subtab 6 at 4, Tab 11
     at 12. The agency thus reconsidered its assessment and determined he met the
     educational requirements for the GS-0457 series, and reassigned him to a Soil
     Conservationist,    GS-0457-09,    position   in   Appleton,   Wisconsin,    effective
     February 26, 2012. IAF, Tab 6 at 9, Tab 11 at 18.



     3
       An individual can meet the qualifications for positions in the GS-0457 series with a
     degree in soil conservation or a related discipline, or with a combination of education
     and experience. Both methods of satisfying the requirement must include twelve
     semester hours in a combination of soils and crops or plant science. Of the twelve
     semester hours, a minimum of three semester hours must have been in the study of soils
     and three semester hours in the study of crops or plant science. See OPM Qualification
     Standards,    Soil     Conservation     Series–0457,    http://www.opm.gov/policy-data-
     oversight/classification-qualifications/general-schedule-qualification-standards/0400/
     soil-conservation-series-0457/ (last visited Feb. 12, 2015).
                                                                                           4

¶6          The Chief of the Service issued a final decision regarding the appellant’s
     grievance on April 30, 2014. IAF, Tab 11 at 12-14. The Chief stated that the
     appellant had already received the relief he sought, namely to be returned to a
     position in the GS-0457 series, and he noted that the appellant had been given a
     written explanation of the agency’s action regarding its review of his position and
     the legitimate business reasons for reassigning him to the Appleton, Wisconsin
     office, as he had requested. Id. at 13. The Chief also afforded the appellant 1
     year     of priority consideration    for   any open     merit   promotion     vacancy
     announcement in the Service at the same series, grade, promotion potential, and
     same geographic location as the District Conservationist, GS-0457-11 position for
     which he was found ineligible in 2010; rescission of all Standard Form 50s
     reflecting his occupational series as GS-0343; and information relating to the
     equal employment opportunity process for any potential discrimination or
     retaliation claim he might bring. Id. at 13-14.
¶7          The administrative judge found that the Board lacked jurisdiction over the
     appellant’s claim that the agency improperly failed to consider him for the two
     vacancies.    ID at 4-5.   The administrative judge also found that the appellant
     failed to show that the Board had jurisdiction over the matter as an employment
     practices appeal.   ID at 5-9.    The administrative judge further found that the
     Board lacked jurisdiction over the matter as an individual right of action (IRA)
     appeal and over any claim of reprisal brought under 5 U.S.C. § 2302(b)(9). ID at
     10-13.      The administrative judge thus dismissed the appeal for lack of
     jurisdiction. ID at 13. Because she dismissed the appeal based on jurisdiction,
     she declined to make a finding as to whether it was timely filed. 4 ID at 10.



     4
       The agency argued that the appeal was untimely filed without good cause shown for
     the delay in filing. IAF, Tab 8 at 12. The appeal was filed on June 24, 2014, well
     beyond the filing period for any agency decision that might underlie an appeal. IAF,
     Tab 1 at 1; see 5 C.F.R. § 1201.22(b). The final determination letter from the Office of
     Special Counsel was dated August 30, 2011, and that the appellant was reassigned to a
                                                                                            5

¶8         On review, the appellant alleges that the appeal “was premeditated for
      dismissal,” as well      as   wrongly decided      based    on   “false   jurisdictional
      presumptions.” Petition for Review (PFR) File, Tab 1 at 1. He also argues that
      the administrative judge sought to dismiss his appeal as untimely by considering
      it to be an IRA appeal rather than an employment practices appeal, even though
      he had clearly stated that he was appealing an employment practice pursuant to
      5 C.F.R. Part 300. PFR File, Tab 1 at 1.
¶9         Regarding the employment practices claim, the appellant asserts that the
      agency failed to follow the designated examining unit procedures of the Office of
      Personnel Management (OPM) when it found him unqualified for the GS-0457
      series and transferred him to the GS-0343 series. Id. at 3. He explains that he
      considers the agency’s reevaluation of his qualifications following his Fond du
      Lac nonselection as the basis for his claim, rather than the nonselection
      itself. Id. He argues that the administrative judge failed to recognize that there
      was no rational or relevant relationship between his demonstrated performance in
      a position in the GS-0457 series and the employment practice of disqualifying
      him based on educational qualifications alone.             Id. at 3-4; see 5 C.F.R.
      § 300.103(b)(1) (“There shall be a rational relationship between performance in
      the position to be filled . . . and the employment practice used.”). He further
      asserts that the agency should have considered his 7 years of successful work
      experience in the GS-0457 series in lieu of any educational credentials perceived
      to be missing. PFR File, Tab at 3.
¶10        The administrative judge, however, properly dismissed the appeal.
      Although the appeal form mentions whistleblowing, the appellant explained
      during the proceedings below that he was not pursuing an IRA appeal. 5 See IAF,


      position in the GS-0457 series effective February 26, 2012. IAF, Tab 1 at 24, Tab 11 at
      18. The final decision for his grievance was issued April 30, 2014. IAF, Tab 11 at 12.
      5
        The appellant’s correspondence from the Office of Special Counsel pertains to a
      complaint he had filed under sections 2302(b)(2) and (b)(9). See IAF, Tab 1 at 21-24.
                                                                                        6

      Tab 1 at 2, Tab 7 at 5. The appellant’s assertion that the administrative judge
      sought to “trick” him into focusing his appeal on whistleblower retaliation so that
      it could be dismissed as untimely is negated by the fact that the administrative
      judge carefully considered multiple jurisdictional theories and rendered a decision
      based on lack of jurisdiction.
¶11        As for the appellant’s assertion that he established the Board’s jurisdiction
      over an employment practices appeal, PFR File, Tab 1 at 3, such an appeal must
      concern an employment practice that OPM is involved in administering, and the
      employment practice in question must have violated one of the basic requirements
      set forth in 5 C.F.R. § 300.103, see Scott v. Department of Justice, 105 M.S.P.R.
      482, ¶ 10 (2007); 5 C.F.R. § 300.104(a). The appellant, who bore the burden of
      proof, see 5 C.F.R. § 1201.56(a)(2)(i), failed to set forth nonfrivolous allegations
      that the educational requirement is not rationally related to performance in a
      position in the GS-0457 occupational series, see 5 C.F.R. § 300.103(b). Instead,
      his pleadings have continued to stress the agency’s alleged improper failure to
      substitute job experience for educational requirements when it did not select him
      for two GS-0457 vacancies during 2010.        See, e.g., PFR File, Tab 1 at 1-2.
      Although an agency’s misapplication of a valid OPM requirement under 5 C.F.R.
      Part 300 may constitute an appealable employment practice, its alleged failure to
      consider all education and experience that the appellant deems relevant does not
      bring a nonselection appeal within the Board’s jurisdiction.         See Banks v.
      Department of Agriculture, 59 M.S.P.R. 157, 160 (1993), aff’d, 26 F.3d 140 (Fed.
      Cir. 1994) (Table). In any event, the agency corrected any error it might have
      made when it considered information that the appellant submitted regarding his
      academic training and reversed its earlier finding that he did not meet the
      educational requirements for positions in the GS-0457 series. See IAF, Tab 11
      at 12. The appellant was transferred back into a position in the GS-0457 series,
      and he obtained additional relief, including rescission of certain documents in his
      Official Personnel Folder and priority consideration for merit promotion to
                                                                                  7

District Conservationist, GS-0457-11. Id. at 12-13. Accordingly, we affirm the
administrative judge’s finding regarding the Board’s 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.
        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 want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under 5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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
                                                                                 8

States   Code,    at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,          which         can        be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. The Merit Systems Protection Boardneither
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.
