                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIEL MARTIN,                                  DOCKET NUMBER
                  Appellant,                         DA-3443-15-0537-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 8, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Johnny Ray Deleon, Big Spring, Texas, for the appellant.

           Sean Andrew Safdi, Lakewood, Colorado, 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 his appeal of the agency action finding him not qualified for a
     promotion for lack of jurisdiction. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In   January 2014,   the   appellant,   a   GS-12   Supervisory   Engineering
     Technician, was temporarily promoted to Acting Chief of Engineering Service at
     the GS-13 level. Initial Appeal File (IAF), Tab 1 at 8, Tab 7 at 65. While the
     appellant was serving as Acting Chief, he applied to permanently fill the position.
     IAF, Tab 7 at 29, 44-52. On May 20, 2015, however, he was notified that he
     was not qualified for the position because his college degree did not support the
     level of education required. Id. at 38-39. The agency extended the appellant’s
     detail several times until July 27, 2015, at which time he reverted to his GS-12
     Supervisory Engineering Technician position. Id. at 25, 28, 43, 53, 57-59, 61, 63.
     On August 6, 2015, the appellant filed a Board appeal challenging the agency’s
     action, which he characterized as a reduction in grade or pay, a negative
     suitability determination, and a “negative evaluation of qualification,” and
     requested a hearing. IAF, Tab 1 at 2-3.
¶3        In an acknowledgment order, the administrative judge notified the appellant
     that the Board generally lacks jurisdiction over claims that an applicant was not
                                                                                       3

     hired or that an employee was not promoted, but that the Board may have
     jurisdiction where the appellant claims the agency’s decision was made in
     retaliation for whistleblowing, the product of discrimination based on uniformed
     service, or violative of the candidate’s veterans’ preference rights. IAF, Tab 2
     at 2. The appellant responded that the Board has jurisdiction over the matter as a
     suitability determination under 5 C.F.R. part 731 because the agency “canceled
     his eligibility and debarred [him] from competing for the position.” IAF, Tab 5
     at 3.   The administrative judge issued a show cause order explaining that the
     Board has jurisdiction over certain matters involving suitability for Federal
     employment and informing the appellant that the appeal would be dismissed for
     lack of jurisdiction unless he made nonfrivolous allegations of fact that, if
     proven, would show that the agency took an appealable “suitability action”
     against him pursuant to 5 C.F.R. part 731. IAF, Tab 6. The appellant responded
     that the agency deprived him of his right to compete for the position due to
     “misinterpretation of the educational requirements causing his application to be
     disqualified” and argued that he was qualified for the permanent Chief of
     Engineering Services position on the basis of his combined education and
     experience. IAF, Tab 8 at 5-8.
¶4           Without holding the requested hearing, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that a nonselection for a specific
     position is not an appealable suitability action. IAF, Tab 11, Initial Decision (ID)
     at 2-3. The appellant has filed a petition for review of the initial decision, and
     the agency has responded in opposition to the appellant’s petition for review.
     Petition for Review (PFR) File, Tabs 1, 3.
¶5           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). Generally, an unsuccessful
     candidate for a Federal civil service position has no right to appeal a
     nonselection.    Kazan v. Department of Justice, 112 M.S.P.R. 390, ¶ 6 (2009).
                                                                                         4

     Nevertheless, pursuant to regulations of the Office of Personnel Management
     (OPM) at 5 C.F.R. part 731, the Board has jurisdiction over certain matters
     involving suitability for Federal employment. Id. Specifically, the Board has
     jurisdiction over a “suitability action,” which is defined by the regulations as a
     cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,
     and a debarment.      Id.; 5 C.F.R. §§ 731.203(a), 731.501(a).       The regulations
     specify that a nonselection for a specific position is not a “suitability action,”
     even if it is based on the criteria for making suitability determinations set forth at
     section 731.202. Kazan, 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.203(b).
¶6         Here, the agency determined that the appellant was not eligible for the
     GS-13 Chief of Engineering Service position because his “college degree does not
     support the level of education required at this grade.” IAF, Tab 7 at 38-39. The
     agency does not appear to have taken any broader action regarding the appellant’s
     eligibility, such as canceling any other eligibilities on other existing competitive
     registers.   See Kazan, 112 M.S.P.R. 390, ¶ 6.        As such, we agree with the
     administrative judge’s determination that this appeal involves the nonselection of
     the appellant for a specific position, over which the Board lacks jurisdiction.
     See 5 C.F.R. § 731.203(b). The appellant has not challenged this finding, and we
     discern no basis to disturb it on review. PFR File, Tab 1.
¶7         Although the appellant has not challenged the suitability finding on review,
     he argues that the Board has jurisdiction over this appeal pursuant to 5 U.S.C.
     §§ 1204(f)(1) and    2302(b)(12). PFR File, Tab 1 at 4-5. The Board generally
     will not consider an argument raised for the first time in a petition for review
     absent a showing that it is based on new and material evidence not previously
     available despite the party’s due diligence.          Banks v. Department of the
     Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant’s arguments that the
     Board has jurisdiction over this claim pursuant to 5 U.S.C. §§ 1204(f)(1) and
     2302(b)(12) were not raised below, and he has not alleged that they are based on
     new and material evidence or explained why he failed to raise these arguments
                                                                                               5

     below.        PFR File, Tab 1 at 4-5; see IAF, Tabs 1, 5, 8.               Absent any such
     explanation, we decline to consider his late-raised arguments. See Hammond v.
     Department of Veterans Affairs, 98 M.S.P.R. 359, ¶ 6 n.* (2005) (declining to
     consider the appellant’s jurisdictional allegation where he raised it for the first
     time     on     review     without    showing   that    it   was   based     on   previously
     unavailable evidence).
¶8          Even if we were to consider the appellant’s arguments, they would not alter
     the outcome of this appeal.           Under 5 U.S.C. § 1204(f)(1), the Board has the
     authority to review rules and regulations promulgated by OPM at the request of
     an interested person and may declare the regulation invalid if it either has
     required, or would on its face require, an employee to commit a prohibited
     personnel practice. 5 U.S.C. § 1204(f)(2). The appellant appears to argue that
     the Board has jurisdiction under this section to review 5 C.F.R. parts 300 and 335
     because he “was initially deemed qualified for the GS-0801-13 detail, and then
     not qualified for the announced position” and six other facilities found him
     qualified for the same position at the same grade. PFR File, Tab 1 at 4-5. The
     appellant’s disagreement with the agency’s determination that he was not
     qualified for a position fails to state a basis for the Board to exercise its
     regulation review authority under section 1204(f)(1). The appellant also alleges
     that   the      agency’s     action   constituted   a    prohibited   personnel     practice
     under 5 U.S.C. § 2302(b)(12), which prohibits an agency from taking or failing to
     take a personnel action that violates the merit systems principles.               PFR File,
     Tab 1 at 4.      However, in the absence of an otherwise appealable action, the
     appellant’s prohibited personnel practice claim cannot be considered.                   See
     Davis v. Department of Defense, 105 M.S.P.R. 604, ¶¶ 15-16 (2007) (explaining
     that the merit system principles are not themselves a source of Board jurisdiction
     and a nonselection is not an otherwise appealable action).
¶9          The appellant states, for the first time on review, that he has exhausted his
     Office of Special Counsel (OSC) remedy “regarding the matter appealed, OSC
                                                                                  6

File No. MA-15-4202.”      PFR File, Tab 1 at 5.   Although the Board may have
jurisdiction to consider the appellant’s nonselection claim in the context of an
individual right of action (IRA) appeal, see Ormond v. Department of
Justice, 118 M.S.P.R. 337, ¶ 13 (2012), the appellant’s extremely vague
statement, unaccompanied by any documents, such as an OSC close-out letter or a
description of the OSC complaint, fails to present any reviewable claim at this
time.   If the appellant wishes to file an IRA appeal, he may do so with the
regional office in accordance with the Board’s procedures.            See 5 C.F.R.
§§ 1209.5-1209.6.

                 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. 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.
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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 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.
