                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES P. CAMPION,                               DOCKET NUMBER
                   Appellant,                        DC-3443-15-0321-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 7, 2015
       SECURITY,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           James P. Campion, Bethesda, Maryland, pro se.

           Letitia Byers, Esquire, Washington, D.C, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction his appeal from his nonselection for a
     development program.        For the reasons discussed below, we GRANT the



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     appellant’s petition for review, VACATE the initial decision, and REMAND the
     case to the regional office for further adjudication in accordance with this Order.

                                       BACKGROUND
¶2         The appellant, a preference-eligible veteran, has a career appointment as a
     Chief Information Officer, GS-0391-15, with the Department of Defense. Initial
     Appeal File (IAF), Tab 1.      On or about December 1, 2014, he submitted an
     application for the agency’s Senior Executive Service (SES) Candidate
     Development Program (CDP). 2 Id. The vacancy announcement indicated that
     “all groups of qualified individuals within the Federal service” were invited to
     apply. Id. The announcement further explained that, to be considered minimally
     eligible, an applicant must have experience at the GS-15 level (or equivalent),
     and 1 year of supervisory experience.       Id.   The announcement indicated that
     status applicants, i.e., applicants serving under career or career-type appointments
     within the civil service, were not entitled to veterans’ preference.          Id.   As
     instructed, the appellant submitted his résumé and a current Standard Form 50.
     Id. He also submitted a Certificate of Release or Discharge from Active Duty (a
     DD-214), although only nonstatus applicants seeking veterans’ preference were
     invited to do so. Id.
¶3         On December 30, 2014, the agency issued a Notice of Results (NOR),
     informing the appellant that his application had been reviewed and he had been
     determined to be ineligible for the CDP. Id. The NOR included the rating code
     “IAOC,” indicating that the appellant could not be referred for the position
     because he was outside the “area of consideration.”          Id.   The NOR did not

     2
       Although listed as series and grade GS-0301-00, the SES CDP is not a position per se,
     but a training program “designed to develop the talents and skills of individuals with
     executive potential in order to create a cadre of candidates who can assume senior
     management positions at the SES-level as vacancies occur.” IAF, Tab 1. Participation
     does not guarantee placement in an SES position. Id. Participants holding Federal
     status remain in their full-time position of record while completing program
     requirements. Id.
                                                                                     3

     indicate on what basis the appellant had been found to be outside the area of
     consideration. Id.
¶4         On January 9, 2015, the appellant filed an appeal contesting the NOR. Id.
     He contended that the Office of Personnel Management (OPM) had found him
     ineligible because his application was “missing a simple check-box mark for his
     federal status,” and had disregarded the other information and documents
     provided in his application. Id. The agency moved to dismiss the appeal, arguing
     that the proper responding party was OPM, which made the eligibility
     determination. IAF, Tab 8.
¶5         The administrative judge denied the motion, finding that the agency was the
     proper respondent. IAF, Tab 10. The administrative judge further noted that
     there was an issue as to the Board’s jurisdiction, because nonselections are
     generally not appealable to the Board. Id. at 3. He identified three exceptions to
     that general rule:
           They are when the unsuccessful candidate claims that the agency’s
           decision was: made in retaliation for his whistleblowing, see
           5 U.S.C. § 2302(a)(2)(A)(i); the product of discrimination based on
           uniformed service, see 38 U.S.C. §§ 3311 [sic], 3 4324; or violative of
           the candidate’s veterans’ preference rights, see 5 U.S.C.
           § 3330a(d)(1).
     Id.   The administrative judge, however, did not refer to the Whistleblower
     Protection Act (WPA), the Uniformed Services Employment and Reemployment
     Rights Act (USERRA), or the Veterans Employment Opportunities Act (VEOA)
     by name, or apprise the appellant of his rights and burdens under the pertinent
     statutes. The administrative judge also did not mention the appellant’s possible
     appeal rights under the “right to compete” provisions of VEOA. See 5 U.S.C.
     §§ 3304(f)(1), 3330a(a)(1)(B).    Nor did he make any reference to 5 C.F.R.
     § 300.104(a), which provides a right to appeal to the Board where a candidate


     3
        It appears the administrative judge intended to cite 38 U.S.C. § 4311, not
     section 3311.
                                                                                          4

     believes that an employment practice applied to him by OPM violates the basic
     requirements of 5 C.F.R. § 300.103.        Nonetheless, the administrative judge
     ordered the appellant to show why his appeal should not be dismissed for lack of
     jurisdiction. IAF, Tab 10.
¶6        In his response to the order, the appellant explained that he was specifically
     contesting the denial of his “right to compete” for the CDP. IAF, Tab 12. He
     further contended that the agency had committed two prohibited personnel
     practices. First, he argued that by finding him ineligible despite proof of his
     Federal career status, the agency deceitfully and willfully obstructed his right to
     compete for employment, in violation of 5 U.S.C. § 2302(b)(4). Id. He further
     alleged that the agency had violated 5 U.S.C. § 2302(b)(11)(B), which provides
     that it is a prohibited personnel practice to “knowingly fail to take, recommend,
     or approve any personnel action if the failure to take such action would violate a
     veterans’ preference requirement.” Id. The agency filed a response in which it
     argued that none of the three exceptions identified by the administrative judge
     was applicable here and that the Board therefore lacked jurisdiction over the
     appeal. IAF, Tab 15.
¶7        On March 4, 2015, the administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction. IAF, Tab 16, Initial Decision (ID).
     He found that, to the extent the appellant was seeking to bring an appeal under
     VEOA, the Board lacked jurisdiction because the appellant had not shown that he
     had exhausted his administrative remedy with the U.S. Department of Labor
     (DOL). Id.; 5 U.S.C. § 3330a(d)(1). The administrative judge further found that,
     in the absence of an otherwise appealable action, the Board did not have
     jurisdiction to consider the appellant’s prohibited personnel practice claims. Id.
¶8        On petition for review, the appellant essentially reiterates the arguments set
     forth in his response to the jurisdictional order. Petition for Review (PFR) File,
     Tab 1. In its response, the agency argues that the appellant’s petition does not
     meet the criteria for review. PFR File, Tab 3.
                                                                                            5

                                           ANALYSIS
¶9          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). As the administrative judge
      correctly noted, a nonselection is not directly appealable to the Board. 4          See
      Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 5 (2008). Furthermore,
      the appellant’s claims of prohibited personnel practices under 5 U.S.C.
      § 2302(b)(4) and (b)(11) are not themselves independent sources of Board
      jurisdiction. Cf. Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d,
      681 F.2d 867, 871-73 (D.C. Cir. 1982).         There are, however, several possible
      situations in which the Board might have jurisdiction to consider a challenge to a
      nonselection.
¶10         First, under the WPA, as amended, the Board may have jurisdiction over an
      individual right of action (IRA) appeal alleging that the agency’s decision was the
      result of a prohibited personnel practice under 5 U.S.C. § 2302(b)(8) or
      (b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a). To establish jurisdiction
      over an IRA appeal, the appellant must prove that he exhausted his administrative
      remedies before the Office of Special Counsel, and also make nonfrivolous
      allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8)
      or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
      (C), or (D); and (2) the protected activity was a contributing factor in the
      agency’s decision to take or fail to take a personnel action. Linder v. Department
      of Justice, 122 M.S.P.R. 14, ¶ 6 (2014).
¶11         Second, under USERRA, the Board may have jurisdiction over a claim that
      the nonselection was the product of discrimination based on uniformed service.

      4
        The appellant contends that he is not appealing a nonselection, but rather, the denial
      of his “right to compete” for the CDP. IAF, Tab 12; PFR File, Tab 1. However, we
      view an alleged denial of the “right to compete” not as a matter distinct from the
      resulting nonselection, but rather as a theory under which the nonselection may be
      challenged. See Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 5 (2008).
                                                                                           6

      See 38 U.S.C. §§ 4311, 4324. To establish Board jurisdiction over a USERRA
      appeal alleging discrimination based on uniformed service, the appellant must:
      (1) show that he performed duty in a uniformed service of the United States;
      (2) nonfrivolously   allege    that   he   lost   a   benefit   of   employment;   and
      (3) nonfrivolously allege that the benefit was lost due to the performance of duty
      in the uniformed service.        Hammond v. Department of Veterans Affairs,
      98 M.S.P.R. 359, ¶ 7 (2005).
¶12        Third, under VEOA, the Board may have jurisdiction over a claim that the
      agency’s action violated the appellant’s veterans’ preference rights.        5 U.S.C.
      § 3330a(a)(1)(A), (d)(1). To establish Board jurisdiction over such an appeal, an
      appellant must: (1) show that he exhausted his remedy with DOL; and (2) make
      nonfrivolous allegations that (i) he is a preference eligible within the meaning of
      the VEOA, (ii) the action(s) at issue took place on or after October 30, 1998, and
      (iii) the agency violated his rights under a statute or regulation relating to
      veterans’ preference. Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162,
      ¶ 9 (2003), overruled on other grounds by Goldberg v. Department of Homeland
      Security, 99 M.S.P.R. 660 (2005).
¶13        In addition, the Board may have jurisdiction under VEOA to consider a
      claim that the agency violated 5 U.S.C. § 3304(a)(f)(1), which provides that
      preference eligibles or veterans who have been separated from the armed forces
      under honorable conditions after 3 or more years of active service may not be
      denied the opportunity to compete for vacant positions for which the agency
      making the announcement will accept applications from individuals outside its
      own workforce under merit promotion procedures.            5 U.S.C. § 3330a(a)(1)(B),
      (d)(1). To establish Board jurisdiction over a “right to compete” appeal under
      5 U.S.C. § 3330a(a)(1)(B), an appellant must: (1) show that he exhausted his
      remedy with the DOL; and (2) make nonfrivolous allegations that (i) he is a
      veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took
      place on or after the enactment date of the Veterans’ Benefits Improvement Act
                                                                                        7

      of 2004, and (iii) the agency, in violation of 5 U.S.C. § 3304(f)(1), denied him the
      opportunity to compete under merit promotion procedures for a vacant position
      for which the agency accepted applications from individuals outside its own
      workforce.   Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5
      (2010).
¶14        Finally, an appellant may appeal a nonselection if he believes an
      employment practice applied to him by OPM violates the basic requirements set
      forth at 5 C.F.R. § 300.103.    See 5 C.F.R. § 300.104(a).     To establish Board
      jurisdiction under 5 C.F.R. § 300.104(a), an appellant must show the following:
      (1) that the agency action at issue constitutes an employment practice within the
      meaning of 5 C.F.R. Part 300, Subpart A; (2) that the employment practice
      violates the basic requirements of 5 C.F.R. § 300.103; and (3) that OPM is
      involved in the administration of the employment practice.            Mapstone v.
      Department of the Interior, 106 M.S.P.R. 691, 696 (2007).                The term
      “employment practice,” as defined at 5 C.F.R. § 300.101, includes the
      development and use of examinations, qualification standards, tests, and other
      measurement instruments, and is meant to be given a “broad and inclusive
      meaning.” Dowd v. United States, 713 F.2d 720, 723 (Fed. Cir. 1983). The basic
      requirements under 5 C.F.R. § 300.103 are that an employment practice be based
      on a job analysis, rationally related to performance to be filled, and
      nondiscriminatory on the basis of race, color, religion, sex, age, national origin,
      partisan political affiliation, or other nonmerit factor. Metzenbaum v. General
      Services Administration, 96 M.S.P.R. 104, ¶ 13 n.7 (2004).
¶15        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, the administrative judge did
      not inform the appellant, even in broad outline, of what he had to show in order to
                                                                                                 8

                                                                                     5
      establish jurisdiction under any of the authorities discussed above.               See IAF,
      Tab 10. This error was magnified by the appellant’s pro se status. See Boughton
      v. Department of Agriculture, 94 M.S.P.R. 347, ¶ 4 (2003). Under these
      circumstances, we find that the appellant must be provided another opportunity to
      establish jurisdiction over his appeal.
¶16         Accordingly, we vacate the initial decision and remand this case to the
      regional office for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                                ______________________________
                                                    William D. Spencer
                                                    Clerk of the Board
      Washington, D.C.




      5
        The agency set out the jurisdictional requirements of a VEOA claim under 5 U.S.C.
      § 3330a(a)(1)(A) in its opposition to the appellant’s response to the jurisdictional
      order. IAF, Tab 15 at 7. The Board has held that an appellant may receive notice of
      his burden of proof on jurisdiction through the agency’s motion to dismiss. Yost v.
      Department of Health & Human Services, 85 M.S.P.R. 273, ¶ 3 (2000), aff’d, 4 F.
      App’x 900 (Fed. Cir. 2001). In this case, however, the appellant did not have an
      opportunity to respond to the agency’s pleading below, and the clarity of the notice
      provided by the agency was diminished by the administrative judge’s subsequent
      failure to set out the jurisdictional requirements or correctly cite the pertinent statute in
      the initial decision. See ID at 4. Moreover, neither the agency nor the administrative
      judge made any reference to the appellant’s possible “right to compete” VEOA claim
      under 5 U.S.C. §§ 3304(f)(1) and 3330a(a)(1)(B).
