                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ABEL D. GARZA,                                  DOCKET NUMBER
                         Appellant,                  DA-3443-15-0397-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 5, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Abel D. Garza, Laredo, Texas, pro se.

           Benjamin D. Wolarsky, Esquire, and Lisa M. Ezra, Esquire, Laredo, Texas,
             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 for lack of jurisdiction his appeal of the agency’s decision to withdraw
     its conditional offer of employment. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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).
¶2         The appellant applied for a position as a Border Patrol Agent with the
     Customs and Border Protection Agency.           Initial Appeal File (IAF), Tab 8
     at 97-121. The agency informed the appellant of his tentative selection “to begin
     the pre-employment process for the position.”         Id. at 97.   The agency also
     informed the appellant that final offers would only issue after the applicants
     successfully completed all of the preemployment requirements, including, but not
     limited to, a background investigation and a polygraph examination. Id. During
     the preemployment process, the Office of Personnel Management (OPM) notified
     the agency that the appellant was not suitable for the Board Patrol Agent position,
     and the agency withdrew his tentative offer of employment. Id. at 22-23.
¶3         The appellant filed an appeal with the Board challenging his nonselection as
     a negative suitability determination. IAF, Tab 1 at 5. The appellant also argued
     that the agency failed to properly notify him of the decision or give him the
     opportunity to respond. IAF, Tab 6. The agency filed a motion to dismiss the
     appeal, arguing that the Board has no jurisdiction to review the agency’s
     nonselection action. IAF, Tab 8 at 17. The administrative judge informed the
     appellant of the criteria applicable to suitability actions and ordered the appellant
                                                                                        3

     to provide evidence and argument showing that the Board had jurisdiction over
     his appeal as a negative suitability determination under 5 C.F.R. part 731. IAF,
     Tab 10 at 2. The appellant responded to the order by arguing he was qualified for
     the position, challenging the merits of his nonselection, and claiming that the
     agency’s action adversely affected his future employment prospects and resulted
     in his subsequent rejection for a position as a Customs and Border Protection
     Officer. IAF, Tab 12 at 3-4.
¶4           The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1. The administrative
     judge found that the agency rescinded the appellant’s tentative offer of
     employment for the Border Patrol Agent position because he did not successfully
     complete the pre employment process and that the rescission was not an
     appealable suitability action under the Board’s regulations.         ID at 5.    The
     administrative judge also found that the appellant had not asserted any other
     matter over which the Board had jurisdiction. PFR File, at 6.
¶5           The appellant filed a petition for review reasserting the arguments he made
     on appeal, challenging the merits of his nonselection and arguing that the agency
     denied his due process right to defend his character and correct any false
     information. Petition for review (PFR) File, Tabs 1, 4; IAF, Tabs 6, 12. The
     appellant also argues that the Board should have jurisdiction over his appeal
     because he is a Christian male entitled to due process. PFR File, Tab 4 at 13.
     The agency responded in opposition to his petition. Id., Tab 3.
¶6           OPM’s regulations governing suitability actions specify that a denial of
     appointment or nonselection for a specific position is not a suitability action. See
     5 C.F.R. § 731.203(b); Sapla v. Department of the Navy, 118 M.S.P.R. 551, ¶ 12
     (2012). The agency’s withdrawal of the tentative employment offer resulted in
     the denial of the appointment and the nonselection of the appellant for the
     position of Border Patrol Agent. Consequently, no suitability action took place
     here.    See Rodriguez v. Department of Homeland Security, 112 M.S.P.R. 446,
                                                                                         4

¶¶ 8-9 (2009) (finding that OPM’s 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 in 5 C.F.R. § 731.202). Because the
appellant’s arguments on review present no basis for finding jurisdiction over this
appeal, we cannot consider the merits of the appellant’s nonselection or the
agency’s hiring process. 2 We therefore deny the petition for review. 3

                 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


2
  The appellant speculates on review that his nonselection may be an act of retaliation
against one of his parents, both of whom are Federal employees. IAF, Tab 4 at 11.
Apart from his speculative and vague allegation of retaliation, the appellant provides no
facts or evidence to support an inference that his nonselection was retaliation against
his parents. Regardless, prohibited personnel practices under 5 U.S.C. § 2302(b)
are not an independent source of Board jurisdiction. 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). The appellant,
however, may seek redress for this claim from the Office of Special Counsel pursuant to
the procedures set forth at 5 C.F.R. § 1800.1.
3
  Given our finding that this was not a negative suitability determination, we need not
consider what would be the effect on this case, if any, of the recent National Defense
Authorization Act of 2016, Pub. L. No. 114-92, § 1086, and its amendment to 5 U.S.C.
§ 7512, which states that “This subchapter . . . does not apply to -. . . (F) a suitability
action taken by the [Office of Personnel Management] under regulations prescribed by
the Office, subject to the rules prescribed by the President under this title for the
administration of the competitive service.”
                                                                                  5

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
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.
