                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN WOODMASKA,                                 DOCKET NUMBER
                 Appellant,                          DC-3443-16-0372-I-1

                  v.

     DEPARTMENT OF ENERGY,                           DATE: September 28, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           John Woodmaska, Kearny, New Jersey, pro se.

           Saul Ramos, Albuquerque, New Mexico, 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 nonselection 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 filed an appeal challenging the agency’s failure to hire him
     for a Personnel Security Specialist position.         Initial Appeal File (IAF), Tab 1
     at 2‑3, 8, 10-11.        The appellant alleged that the agency used an ineffective
     method for communicating the tentative job offer and that the 2-day time limit for
     responding to the offer was unreasonable. Id. at 3. Specifically, he argued that
     the agency sent a letter to his personal email address tentatively offering him the
     position, but the agency made no effort to confirm that he received the offer by
     contacting him at his work email address or by telephone, although the agency
     had this information and the tentative job offer expired in 2 days.            Id.   The
     appellant further alleged that he was unable to check his personal email at the
     public library and respond to the offer before it expired because the library was
     closed due to a snowstorm and he was precluded from accessing his personal
     email at work. Id.
¶3             The administrative judge issued a show cause order informing the appellant
     that the Board generally lacks jurisdiction over an appeal of a nonselection. IAF,
     Tab 4 at 2. The administrative judge advised the appellant that he had the burden
     of proof on the jurisdictional issue and ordered him to file evidence and argument
                                                                                       3

     to prove that his action was within the Board’s jurisdiction. Id. The appellant
     did not respond to the order.
¶4        Without holding a hearing, the administrative judge issued an initial
     decision dismissing the appeal for lack of jurisdiction.        IAF, Tab 6, Initial
     Decision (ID) at 1. Specifically, the administrative judge found that the appellant
     was not entitled to a hearing because he failed to make nonfrivolous allegations
     that, if proven, could establish Board jurisdiction over the appeal. ID at 1 n.1.
     The administrative judge further found that the appellant failed to allege any facts
     that would bring the challenged action within the Board’s jurisdiction. ID at 4.
     In reaching his decision, the administrative judge noted that the appellant did not
     respond to the show cause order. ID at 3.
¶5        The appellant filed a petition for review reasserting the allegations he made
     on appeal. Petition for Review (PFR) File, Tab 1 at 2. The appellant also alleges
     that the agency may be committing a prohibited personnel practice by willfully
     obstructing the right to compete for employment in violation of 5 U.S.C.
     § 2302(b)(4). PFR File, Tab 1 at 2. He alleges that the agency’s extension of an
     offer of employment with an “artificially short” response time could result in an
     abuse of the hiring process by potentially eliminating highly qualified candidates
     to improve the chances of hiring a “favored or ‘connected’” candidate. Id.
¶6        The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.     5 U.S.C. § 7701(a); Maddox v.
     Merit Systems Protection Board, 759 F.2d 9‑10 (Fed. Cir. 1985). The appellant
     has the burden of establishing the Board’s jurisdiction over his appeal.        See
     5 C.F.R. § 1201.56(a)(2).
¶7        It is well settled that the Board generally does not have jurisdiction to
     review an agency’s decision not to select a particular applicant for a position.
     Brown v. Office of Personnel Management, 91 M.S.P.R. 314, ¶ 7 (2002).
     Exceptions to this rule exist for individual right of action appeals under the
     Whistleblower    Protection     Act   (WPA)   and   the   Whistleblower   Protection
                                                                                      4

     Enhancement Act (WPEA) and for claims under the Veterans Employment
     Opportunities Act of 1998 (VEOA) or the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C §§ 4301-4333)
     (USERRA).     See Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327,
     ¶ 5 (2007).
¶8        The appellant has not alleged that the agency retaliated against him for
     whistleblowing activity in violation of the WPA or the WPEA. In addition, the
     appellant is not a preference‑eligible veteran, and he has not alleged claims under
     VEOA or USERRA. IAF, Tab 1 at 1, 3. Thus, the appellant has not shown that
     he made a nonfrivolous allegation of jurisdiction over his nonselection appeal
     under any of the three stated exceptions to the general rule. Moreover, absent an
     otherwise appealable issue, the Board has no jurisdiction to consider the
     appellant’s allegation that the agency’s time-limited, tentative job offer may have
     been a prohibited personnel practice.        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) (holding that
     5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction).
¶9        To the extent that the appellant is arguing that he was subjected to an
     improper employment practice, we find that he failed to identify any employment
     practice appealable    under 5 C.F.R. part 300, subpart         A, i.e., 5 C.F.R.
     §§ 300.101‑.104(a). Under 5 C.F.R. § 300.104(a), “[a] candidate who believes
     that an employment practice which was applied to him or her by the Office of
     Personnel Management [OPM] violates a basic requirement in § 300.103 is
     entitled to appeal to the Merit Systems Protection Board under the provisions of
     its regulations.” Bush v. Office of Personnel Management, 315 F.3d 1358, 1360
     (Fed. Cir. 2003). Pursuant to 5 C.F.R. § 300.101, “employment practices” are
     defined as “the development and use of examinations, qualification standards,
     tests, and other measurement instruments.”      However, the mere filling of a
     particular vacancy generally is not an “employment practice” within the meaning
                                                                                        5

      of 5 C.F.R. § 300.101.            See Carroll v. Equal Employment Opportunity
      Commission, 6 M.S.P.R. 228, 230 (1981).
¶10         Here, the appellant has alleged that the agency, not OPM, used an
      unreasonable method of communicating the tentative job offer and that the
      limited response time was unfair. The appellant’s allegation does not fall within
      the broadly construed definition of an employment practice appealable to the
      Board under 5 C.F.R. § 300.104(a). See Carroll, 6 M.S.P.R. at 230-31 (finding
      that the appellant had no Board appeal right because her nonselection was within
      the agency’s control and did not concern an employment practice applied to her
      by OPM). Accordingly, we affirm the administrative judge’s decision to dismiss
      the appeal for lack of jurisdiction.

                       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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
                                                                                  6

2012). You may read this law as well as other sections of the U.S. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
