                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2008-3013


                                     DEV IYER,

                                                          Petitioner,

                                         v.


                        DEPARTMENT OF THE TREASURY,

                                                          Respondent.


      Dev Iyer, of Havertown, Pennsylvania, pro se.

       Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant
Director.

Appealed from:   Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3013

                                       DEV IYER,

                                                   Petitioner,

                                            v.

                         DEPARTMENT OF THE TREASURY,

                                                   Respondent.


Petition for review of the Merit Systems Protection Board in PH3443070016-I-1

                           __________________________

                           DECIDED: February 11, 2008
                           __________________________


Before RADER, LINN, and PROST, Circuit Judges.

PER CURIAM.

      Dev Iyer petitions for review of an adverse decision of the Merit Systems

Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Iyer v.

Dep’t of the Treasury, PH3443070016-I-1 (M.S.P.B. Aug. 17, 2007).              We find no

reversible error by the Board and therefore affirm.

                                    BACKGROUND

      Mr. Iyer applied for the position of internal revenue agent in Wilmington,

Delaware, in response to a vacancy announcement by the Department of the Treasury,

Internal Revenue Service (“the agency”).         After an interview, the agency tentatively

offered the position to Mr. Iyer, pending completion of preliminary inquiries, and
scheduled him to attend orientation.       Shortly before the scheduled orientation, the

agency placed Mr. Iyer’s offer on hold due to issues arising during a background

investigation. The agency requested that the Office of Personnel Management (“OPM”)

make a suitability determination regarding Mr. Iyer.            The OPM concluded that

inconsistencies in Mr. Iyer’s application resulted from typographical errors, and that any

misconduct during earlier employment occurred sufficiently prior to the present

application to preclude adjudication by the OPM.

       Notwithstanding the OPM’s decision, communications within the agency indicate

that the human resources department understood that the business unit did not want to

hire Mr. Iyer.    After consulting with employment specialists in the agency and the

selecting official, the human resources department notified Mr. Iyer that the agency was

no longer filling the vacancy in Wilmington.

       After Mr. Iyer challenged the agency’s decision by appealing to the Board on

October 5, 2006, an administrative judge conducted a hearing. Mr. Iyer argued that the

Board had jurisdiction because the agency had in fact based its action on suitability

factors. Iyer v. Dep’t of the Treasury, PH3443070016-I-1, slip op. at 9–10 (M.S.P.B.

Feb. 2, 2007) (“Initial Decision”). The administrative judge dismissed Mr. Iyer’s appeal

for lack of jurisdiction, accepting the agency’s stated reason for nonselection—that it

decided not to fill the position. Id.

       The Board subsequently denied Mr. Iyer’s petition for review making the

administrative judge’s initial decision the final decision of the Board. Mr. Iyer timely filed

a petition for review with this court.




2008-3013                                      2
                                       DISCUSSION

       We have jurisdiction over petitions for review of Board decisions under 28 U.S.C.

§ 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703.          We must set aside

agency actions, findings, or conclusions we find “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence . . . .” 5 U.S.C. § 7703(c).

       The administrative judge considered all of the testimony at the hearing,

concluding that Mr. Iyer failed to prove that the agency based its decision on suitability

factors. Initial Decision, slip op. at 9. In reaching that conclusion, the administrative

judge evaluated the credibility of the witnesses and found no reason to doubt the

agency’s position.   Id.    This court will rarely disturb such evaluations, as credibility

determinations are “virtually unreviewable” at this level.      Hambsch v. Dep’t of the

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The administrative judge accepted as

true that the agency was prepared to go forward with an unsuitability determination, but

did not have to do so when the selecting official decided not to fill the position. Initial

Decision, slip op. at 10. With that understanding, the Board does not have jurisdiction

based on the agency’s nonselection in this case. See Prewitt v. Merit Sys. Prot. Bd.,

133 F.3d 885, 886 (Fed. Cir. 1998) (stating nonselection is an issue generally not

appealable to the Board).

       Mr. Iyer also seeks the Board’s jurisdiction based on a constructive suitability

determination by the agency. Under that theory, however, he must demonstrate that

the agency acted under delegated authority from the OPM to make the suitability




2008-3013                                    3
determination. See Duggan v. Dep’t of the Interior, 98 M.S.P.R. 666, 669 (2005). The

issue the agency believed could support unsuitability here was incorrect information

provided by Mr. Iyer in his application. Initial Decision, slip op. at 3–4. Under the

regulations, the OPM does not delegate authority for determinations in cases involving

“material, intentional false statement or deception or fraud in examination or

appointment.” 5 C.F.R. § 731.103(a). Therefore, Mr. Iyer has also failed to establish

the Board’s jurisdiction under a constructive suitability theory.

       For the foregoing reasons, we affirm the decision of the Board.

                                          COSTS

       No costs.




2008-3013                                     4
