                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PAUL J. GANT,                                   DOCKET NUMBER
                         Appellant,                  DA-0731-13-1251-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: October 8, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Paul J. Gant, Brownsville, Texas, pro se.

           Byron D. Smalley, Washington, D.C., for the agency.

           Lisa M. Ezra, and Stephanie L. Ciechanowski, Esquire, Laredo, Texas, 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 the appeal for lack of jurisdiction. Generally, we grant petitions such

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. We MODIFY
     the initial decision to discuss the agency’s reliance on 5 C.F.R. § 332.406, and we
     find that the Board lacks jurisdiction over the appeal on this alternative basis.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a Federal Bureau of Prisons employee, filed an appeal
     challenging the agency’s decision to withdraw tentative offers for positions as a
     Customs and Border Protection (CBP) Officer and Border Patrol Agent, and
     arguing that the agency made a negative suitability determination. Initial Appeal
     File (IAF), Tab 1; see IAF, Tab 5, Subtab 2C (CBP Officer Application Final
     Disposition), Subtab 2D (Border Patrol Agent Final Disposition), Subtab 2F (the
     agency’s “Unfavorable Suitability Determination” based on “[c]riminal or
     dishonest conduct”). 2      The agency filed a motion to dismiss for lack of
     jurisdiction. IAF, Tab 5. The administrative judge issued a show cause order,
     2
        The appellant also asserted that he was a whistleblower, the administrative judge
     separately docketed an individual right of action (IRA) appeal, and she dismissed the
     appeal when the appellant informed her that he wanted to withdraw his IRA appeal and
     file a complaint with the Office of Special Counsel. See Gant v. Department of
     Homeland Security, MSPB Docket No. DA-1221-14-0125-W-1, Initial Decision
     (Feb. 19, 2014). The appellant did not file a petition for review of that initial decision.
                                                                                      3

     explaining that the Board might not have jurisdiction over the appeal because it
     did not appear that the appellant had been subjected to a suitability action, and
     she ordered him to show cause why the appeal should not be dismissed for lack of
     jurisdiction. See IAF, Tab 18. In his response, made under penalty of perjury,
     the appellant stated that CBP informed him that if he decided to reapply for a
     position with CBP, the results of his last background investigation and/or
     polygraph examination would be used for future investigations for a minimum of
     3 years. IAF, Tab 20 at 4; see IAF, Tab 5, Subtabs 2C, 2D. He also stated that he
     was “verbally told over the phone by CBP that in reality [he] was debarred for
     life” and, if he applied for any other positions, “the information would be
     presented to the respective agency and used to deem [him] unsuitable for
     employment.” IAF, Tab 20 at 4.
¶3        The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction because the agency’s nonselection for these positions did not
     constitute an appealable suitability action. See IAF, Tab 21, Initial Decision (ID)
     at 4-6. The appellant filed a petition for review, the agency filed a response, and
     the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 4-5. On
     review, the appellant argues that the agency’s actions constituted appealable
     suitability actions, and he otherwise generally contests the merits of the agency’s
     actions. After the record closed on review, the appellant subsequently filed a
     motion to compel, to which the agency responded. PFR File, Tabs 6, 8.
     We affirm the administrative judge’s conclusion that the appellant did not make a
     nonfrivolous allegation that the agency took a suitability action against him.
¶4        The record contains a May 28, 2013 memorandum which stated, in pertinent
     part, that “[a]n unfavorable suitability determination has been rendered” for the
     appellant based on “[c]riminal or dishonest conduct.” IAF, Tab 5, Subtab 2F.
     The determination stated that it applied to “All CBP Federal Employment.” Id.
     Based on this memorandum, the agency informed the appellant that: (1) he was
     found unsuitable for the CBP Officer and Border Patrol Agent positions; (2) the
                                                                                                    4

     agency rescinded his tentative selection for these positions in accordance
     with 5 C.F.R. § 332.406; (3) he did not have Board appeal rights to challenge the
     agency decisions; and (4) the results of the background investigation and
     polygraph examination would be used in future investigations for the next
     3 years. See IAF, Tab 5, Subtabs 2C, 2D.
¶5        Under the suitability regulations, only a “suitability action” may be
     appealed to the Board. See Kazan v. Department of Justice, 112 M.S.P.R. 390,
     ¶ 6 (2009); see also 5 C.F.R. § 731.501(a). A “suitability action” is defined as a
     cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,
     and a debarment. 5 C.F.R. § 731.203(a). A nonselection for a specific position is
     not a “suitability action” even where, as here, it is based on the criteria for
     making a suitability determination as set forth in 5 C.F.R. § 731.202. 3                     See
     Rodriguez v. Department of Homeland Security, 112 M.S.P.R. 446, ¶ 9 (2009);
     Kazan,    112     M.S.P.R.   390,      ¶ 6;   Upshaw      v.     Consumer    Product       Safety
     Commission, 111 M.S.P.R. 236, ¶ 8 (2009), modified by Scott v. Office of
     Personnel Management, 116 M.S.P.R. 356 (2011), modified, 117 M.S.P.R. 467
     (2012); see also 5 C.F.R. § 731.203(b).
¶6        The agency’s use of the term “Unfavorable Suitability Determination” in its
     memorandum is inartful, but it does not transform the agency’s action into an
     appealable suitability action.      See, e.g., Gregory v. Merit Systems Protection
     Board, 469 F. App’x 891, 893 (Fed. Cir. 2012) (“[The General Services
     Administration’s (GSA’s)] use of the word ‘suitability’ in providing notice to
     Gregory    does    not   alter   the     substance   of        the   GSA’s   actions.”),     cert
     denied, 133 S. Ct. 417 (2012). The Board may follow nonprecedential decisions
     of the U.S. Court of Appeals for the Federal Circuit to the extent that it finds
     them to be persuasive.       Weed v. Social Security Administration, 113 M.S.P.R.
     221, ¶ 11 (2010). We find the court’s reasoning persuasive.
     3
      Criminal and dishonest conduct is one of the specific factors that may be considered.
     See 5 C.F.R. § 731.202(b).
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¶7        We also have considered the appellant’s argument, made again on review,
     that he was debarred.     PFR File, Tab 1; see IAF, Tab 20 at 4.         An agency
     debarment is defined as a denial of examination for, or appointment to, all or
     specific covered positions within that agency for a period of up to 3 years, based
     on a finding of unsuitability. See 5 C.F.R. § 731.205(a). There is no evidence
     that the agency took such action. To the contrary, the agency appeared to expect
     that the appellant might reapply for another position.           See IAF, Tab 5,
     Subtabs 2C, 2D (informing the appellant that, if he decided to reapply for a
     position with CBP, the results of his last background investigation and/or
     polygraph examination would be used for future investigations for a minimum of
     3 years). The appellant’s assertion that an unidentified CBP employee told him
     on an unspecified date that he was “debarred for life,” IAF, Tab 20 at 4, does not
     constitute a nonfrivolous allegation that the agency took a suitability action
     against him, see, e.g., Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 11 (2009)
     (finding that facts without support do not constitute nonfrivolous allegations).
¶8        Because the appellant failed to make a nonfrivolous allegation that the
     agency took a suitability action against him, we agree with the administrative
     judge’s decision to dismiss the appeal for lack of jurisdiction.      See Gregory,
     469 F. App’x at 893-94 (“[T]here is no evidence that Gregory was removed or
     debarred from any position, that his reinstatement eligibility was cancelled, or
     that his eligibility was cancelled for any position other than the specific position
     he sought with the GSA. In short, the GSA’s decision amounted to nothing more
     than a non-selection for employment, which is generally not appealable to the
     Board.”).
     We modify the initial decision to discuss the agency’s reliance on 5 C.F.R.
     § 332.406, and we conclude that, even under this alternative authority, the Board
     lacks jurisdiction over the appeal.
¶9        An agency that wishes to not appoint an individual from a certificate based
     on any of the reasons identified in 5 C.F.R. § 731.202(b), including as here,
                                                                                         6

      criminal and dishonest conduct, may make an objection pursuant to 5 C.F.R.
      § 332.406.    See Recruitment and Selection Through Competitive Examination,
      74 Fed. Reg. 30459, 30460 (June 26, 2009).               Because the agency relied
      on 5 C.F.R. § 332.406 in its “Unfavorable Suitability Determination” and its
      correspondence to the appellant, see IAF, Tab 5, Subtabs 2C, 2D, 2F, and the
      administrative judge did not specifically analyze the agency’s reliance on this
      regulation in the initial decision, we modify the initial decision to discuss this
      regulation.
¶10        Subsection (a) of 5 C.F.R. § 332.406 delegates to agencies the authority to
      adjudicate    objections    to   eligibles.      See    Pecard   v.   Department   of
      Agriculture, 115 M.S.P.R. 31, ¶ 10 (2010). In this context, an “[o]bjection” is
      “an agency’s request to remove a candidate from consideration on a particular
      certificate.” 5 C.F.R. § 332.102. Subsection (b) of 5 C.F.R. § 332.406 states that
      an objection may be sustained “only if it is based on a proper and adequate
      reason,” which includes the criteria for making suitability determinations in 5
      C.F.R. part 731. Subsection (g) states that an individual may not appeal to the
      Board a decision by an agency with delegated authority to sustain an objection. 5
      C.F.R. § 332.406(g).
¶11        Even if we consider the agency’s action pursuant to this alternative
      authority, the Board lacks jurisdiction over the appeal. The agency has delegated
      authority to sustain an objection, and criminal and dishonest conduct constitutes a
      “proper   and    adequate    reason”    to    sustain   an   objection.    5   U.S.C.
      §§ 332.406(a), (b). Because the agency’s rescission of the appellant’s tentative
      offers is based on a sustained objection pursuant to 5 C.F.R. § 332.406, the
      appellant may not appeal these decisions to the Board.
      The appellant’s motion to compel is denied.

¶12        In his motion to compel, the appellant explains that he made a Freedom of
      Information Act (FOIA) request to the agency on May 10, 2013, but the
                                                                                  7

information requested was not “fully and completely answered.” PFR File, Tab 6.
We need not consider the timeliness of the appellant’s motion because the Board
does not have jurisdiction to adjudicate the appellant’s complaint that the agency
did not comply with his FOIA request.            See Cortright v. Department of
Transportation, 37 M.S.P.R. 565, 570 (1988); see also 5 U.S.C. § 552(a)(4)(B)
(only U.S. district courts have jurisdiction to decide disputes over an agency’s
compliance with FOIA).

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.    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).
     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.
                                                                                8

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.
