                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VALERIE L. SOUTHALL,                            DOCKET NUMBER
                   Appellant,                        SF-3443-16-0137-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: August 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Valerie L. Southall, Carmichael, California, pro se.

           Daniel T. Raposa, Washington, D.C., 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 her 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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         The appellant applied for the GS-5 position of Legal Assistant at the
     agency. Initial Appeal File (IAF), Tab 1. On November 9, 2015, she received
     notice that she had been selected; however, the following day, Human Resources
     personnel notified her that the selection was an error. Id. The appellant appealed
     the agency’s cancellation/nonselection action.      Id.   The administrative judge
     found that the appellant failed to show that the appointment authority had actually
     selected her. IAF, Tab 17, Initial Decision (ID) at 5. The administrative judge
     also found that, even if an appointment authority selected her, the appellant failed
     to show that she took any action accepting the position or that she ever performed
     the duties of the position.       ID at 5.    Thus, she found no error in the
     cancellation/nonselection action, and she dismissed the appeal for lack of
     Board jurisdiction.
¶3         In her petition for review, the appellant stated that she has filed a complaint
     with the Office of Special Counsel (OSC) and asks that the Board not issue a
     decision until OSC issues a decision or closes out her case. Petition for Review
     File, Tab 1.
¶4         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).             To establish Board
                                                                                      3

     jurisdiction over the cancellation of a promotion or appointment, the appellant
     must show that: (1) the promotion or appointment was approved by an authorized
     official aware that she was making the promotion or appointment; (2) the
     appellant took some action denoting acceptance of the promotion or appointment;
     and (3) the promotion or appointment was not revoked before the appellant
     performed    in   the   position.     Marrero    v.   Department     of   Veterans
     Affairs, 100 M.S.P.R. 424, ¶ 7 (2005), overruled on other grounds by Deida v.
     Department of the Navy, 110 M.S.P.R. 408, ¶ 16 (2009).
¶5        Here, we agree with the administrative judge that the appellant failed to
     show that the appointment was approved by an authorized official.         Also, the
     administrative judge properly found that the appellant failed to show that she took
     any action denoting acceptance of the position, and/or that she ever performed the
     duties of the position.     The record reflects that the administrative judge
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned conclusions on the issue of credibility. As a result, we find no basis to
     disturb the administrative judge’s determination that the Board lacks jurisdiction
     over this appeal. ID at 3‑5; e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
     105‑06 (1997) (finding no reason to disturb the administrative judge’s findings
     where she considered the evidence as a whole, drew appropriate inferences, and
     made reasoned conclusions); Broughton v. Department of Health & Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶6        Despite the general lack of Board jurisdiction over a nonselection, an
     appellant may appeal a nonselection for a position by other statutory means, such
     as through an individual right of action (IRA) appeal. Becker v. Department of
     Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007).       An individual who files a
     complaint with OSC alleging retaliation for whistleblowing may file an IRA
     appeal with the Board upon receiving notice from OSC that it has terminated its
     investigation, or upon the expiration of 120 days after the complaint was filed if
                                                                                       4

     OSC has not notified the individual that it will seek corrective action on her
     behalf.       5 U.S.C.   § 1214(a)(3);   Kochanoff     v.    Department    of   the
     Treasury, 98 M.S.P.R. 405, ¶ 6 (2005). Here, the appellant has shown that she
     filed a complaint with OSC on January 12, 2016, that 120 days have passed since
     she filed her complaint, and that she wishes to proceed with an IRA appeal.
¶7        Accordingly, we forward the appellant’s allegation of whistleblower
     reprisal to the Western Regional Office for docketing and adjudication as an
     IRA appeal.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           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:
                               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.        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
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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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
