                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LISA J. WILSON,                                 DOCKET NUMBER
                         Appellant,                  CH-3443-15-0480-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 16, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lisa J. Wilson, McKees Rocks, Pennsylvania, pro se.

           Jennifer Spangler, Esquire, Kansas City, Kansas, 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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 AFFIRM the initial decision
     insofar as it found that the appellant failed to establish jurisdiction under 5 C.F.R.
     part 300 regarding employment practices. We MODIFY the initial decision to
     explain why the appellant failed to establish jurisdiction under the suitability
     regulations, 5 C.F.R. part 731.

                                       BACKGROUND
¶2         The appellant challenged the agency’s Bureau of Prison’s decision to
     eliminate her from consideration for a Correctional Officer position for which she
     had applied. The appellant alleged that, during an interview for the position, the
     Human Resources (HR) Specialist conducting the interview asked her about past
     terminations or discipline, and she replied in the negative. Initial Appeal File
     (IAF), Tab 1 (item 5 continuation sheet).      According to the appellant, the HR
     Specialist pointed to an answer on an employment form in which the appellant
     had said she had been “separated” from a job “due to lack of productivity, did not
     meet quota in month of employment.”         Id.; IAF, Tab 6 at 19.     The appellant
     alleged that the HR Specialist subsequently terminated the interview, telling her,
     “you won’t be able to get a security clearance based on the recent termination,
     this applies to everybody and we must treat everyone the same.”           IAF, Tab 1
     (item 5 continuation sheet). The appellant stated that she had not understood her
                                                                                       3

     separation to have been a termination, and that she had separated from the
     employer with “dignity and integrity.” IAF, Tab 2 at 8, Tab 9 at 5-6.
¶3         Using the Board’s electronic appeal form, the appellant stated that she was
     appealing a “Negative suitability determination.” IAF, Tab 1 (item 1). In her
     acknowledgment order, the administrative judge notified the appellant that
     nonselections generally are not appealable to the Board, but informed her of three
     exceptions to that general rule, none of which related to suitability. IAF, Tab 3
     at 3. The agency then filed a motion to dismiss, arguing that the appellant failed
     to make a case under the suitability regulations of 5 C.F.R. part 731. IAF, Tab 7.
     The administrative judge then issued an order to show cause directing the
     appellant to submit evidence and argument to show Board jurisdiction, in which
     she explained the elements for establishing jurisdiction under 5 C.F.R. part 300,
     subpart A, regarding employment practices.       IAF, Tab 8.   The order to show
     cause did not mention the requirements for establishing jurisdiction over a
     suitability appeal under 5 C.F.R. part 731. The appellant subsequently submitted
     numerous pleadings. IAF, Tabs 9-11, 13-18. Although the appellant, in some of
     her pleadings, argued for jurisdiction over her appeal as an employment practices
     appeal, all of the pleadings argued for jurisdiction as a suitability appeal. Id. In
     both its motion to dismiss and in its reply to the appellant’s response to the order
     to show cause, the agency argued that the appellant failed to establish jurisdiction
     over her appeal under the suitability regulations because those regulations only
     apply when the agency has conducted a background investigation, and no such
     investigation had been conducted. IAF, Tab 7, Tab 12 at 5.
¶4         Much of the initial decision was primarily devoted to explaining why the
     appellant failed to establish jurisdiction over her nonselection as an employment
     practices appeal. IAF, Tab 21 at 3-5. The decision did, however, briefly address
     the appellant’s suitability claim as follows:
           The appellant checked the box on her appeal form that she was
           appealing a negative suitability action, however, the appellant
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           has not provided any evidence that a suitability action was taken
           pursuant to 5 C.F.R. §§ 731.103(a), .205 (2015). Conclusory, vague,
           or unsupported allegations are insufficient to meet the non-frivolous
           allegation standard. See Briscoe v. Department of Veterans Affairs,
           55 F.3d 1571, 1573 (Fed. Cir. 1995).
     IAF, Tab 21, Initial Decision (ID) at 3.
¶5        An appellant must receive explicit information on what is required to
     establish an appealable jurisdictional issue before an appeal can be dismissed for
     lack of jurisdiction. Burgess v. Merit Systems Protection Board, 758 F.2d 641,
     643-44 (Fed. Cir. 1985).     Although the initial decision briefly addressed the
     appellant’s contention that her case should be heard as a suitability appeal under
     5 C.F.R. part 731, the administrative judge previously had not acknowledged the
     appellant’s claim of jurisdiction as a suitability appeal.          Nor did the
     administrative judge explain, in the initial decision or previously, what is
     required to establish an appealable issue in a suitability appeal.     The Board
     therefore issued an order on July 6, 2016, which described the requirements for
     establishing jurisdiction over a suitability appeal and ordered the appellant to
     submit evidence and argument relating to her jurisdictional burden. Petition for
     Review (PFR) File, Tab 5.      The parties responded to that order.    PFR File,
     Tabs 6-7.

                                        ANALYSIS
¶6        Suitability is directed toward whether the character or conduct of an
     individual is such that her employment would adversely affect the integrity or the
     efficiency of the service.     5 C.F.R. § 731.101(a).   The criteria for making
     suitability determinations are listed in 5 C.F.R. § 731.202.       One factor in
     determining if a person is suitable for Federal employment is whether she has
     made a “[m]aterial, intentional false statement, or deception or fraud in
     examination or appointment.”     5 C.F.R. § 731.202(b)(3).   What is required to
     establish jurisdiction over a suitability appeal changed effective June 16, 2008,
     when the Office of Personnel Management (OPM) amended its regulations in
                                                                                        5

     part 731. 73 Fed. Reg. 20,149 (2008). In decisions governed by the regulations
     in effect prior to that date, the Board found that appellants had made nonfrivolous
     allegations of jurisdiction where denials of applications may have been based on
     suitability factors, even in the absence of completed background investigations
     and/or formal suitability determinations. See, e.g., Upshaw v. Consumer Product
     Safety Commission, 111 M.S.P.R. 236, ¶ 7 (2009), modified by Scott v. Office of
     Personnel Management, 116 M.S.P.R. 356 (2011), modified, 117 M.S.P.R. 467
     (2012); Edwards v. Department of Justice, 86 M.S.P.R. 365, ¶¶ 5, 10-14 (2000);
     Dillingham v. Department of Justice, 73 M.S.P.R. 538, 541-43 (1997). Under the
     current regulations, however, only a “suitability action” taken by OPM or by an
     agency under delegated authority may be appealed to the Board.              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).   Neither a “denial of appointment” nor a negative suitability
     determination is listed as an appealable action, and section 731.103(g) no longer
     provides that an applicant who is found unsuitable by an agency acting under
     delegated authority from OPM may appeal an adverse suitability decision to the
     Board. Upshaw, 111 M.S.P.R. 236, ¶¶ 7-8. The current regulations specify that a
     “non-selection, or cancellation of eligibility for a specific position . . . is not a
     suitability action even if it is based on reasons set forth in § 731.202.” 5 C.F.R.
     § 731.203(b) (emphasis in original); see Upshaw, 111 M.S.P.R. 236, ¶ 8.
¶7         Thus, even if, as the appellant alleges, the agency eliminated her from
     consideration for a position for reasons set forth in section 731.202, and even if
     those reasons could be said to reflect negatively on her character or conduct such
     that her employment would adversely affect the integrity or the efficiency of the
     service, the agency did not thereby take a suitability action that is appealable to
     the Board.
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                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 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.
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.
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 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
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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.
