                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WESLEY W. WILSON,                               DOCKET NUMBER
                  Appellant,                         CH-3443-15-0216-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: June 30, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Wesley W. Wilson, Chicago, Illinois, pro se.

           K. Tyson Shaw, Washington, D.C., 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
     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 and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b). However, we FORWARD the appellant’s claim of whistleblower
     retaliation to the Chicago Regional Office for docketing as a new individual right
     of action (IRA) appeal.
                                      BACKGROUND
¶2        The appellant filed this appeal challenging his nonselection for a merit
     promotion. Initial Appeal File (IAF), Tab 1. He alleged that the nonselection
     was discriminatory.   Id.   The administrative judge issued an acknowledgment
     order informing the appellant that the Board may not have jurisdiction over his
     nonselection appeal, but that the Board could have jurisdiction over, inter alia, a
     claim that a nonselection was in retaliation for whistleblowing. IAF, Tab 2. The
     appellant responded that the agency committed prohibited personnel practices; he
     also appeared to assert an employment practices claim. IAF, Tab 6. In a second
     jurisdictional order, the administrative judge informed the appellant of his
     jurisdictional burden with respect to an employment practices claim. IAF, Tab 8.
     The appellant responded, reasserting his prior argument and stating for the first
     time that he filed a complaint with the Office of Special Counsel (OSC) after he
     discovered his nonselection. IAF, Tab 9 at 6.
¶3        The administrative judge issued an initial decision dismissing the appeal for
     lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). Specifically, she found
     that the appellant did not offer any argument or evidence that his nonselection
     constituted an appealable action. ID at 8. She also found that his allegations
     were insufficient to support an employment practices claim. ID at 8. She did not
     address the appellant’s statement that he had filed an OSC complaint.
¶4         The appellant has filed a timely petition for review in which he alleges that
     he participated in protected whistleblowing activity when he filed an equal
     employment opportunity (EEO) complaint against the agency. 2              Petition for
     Review (PFR) File, Tab 1 at 5-6. The appellant further alleges that the agency
     retaliated against him for this activity by misclassifying him as not “mobile,”
     which led to his nonselection. Id. The agency has responded in opposition to the
     petition for review. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     Employment Practices Claim
¶5         We agree with the administrative judge that the appellant has failed to
     establish jurisdiction over his employment practices claim.           The Board has
     jurisdiction over an employment practices appeal pursuant to 5 C.F.R.
     § 300.104(a) when two conditions are met:             (1) the appeal concerns an
     employment practice that the Office of Personnel Management (OPM) is involved
     in administering; and (2) the employment practice must be alleged to have
     violated one of the “basic requirements” for employment practices set forth
     in 5 C.F.R. § 300.103. Sauser v. Department of Veterans Affairs, 113 M.S.P.R.
     403, ¶ 6 (2010).    An individual agency action or decision that is not made
     pursuant to or as part of a rule or practice of some kind does not qualify as an



     2
       On petition for review, the appellant has submitted additional evidence. Petition for
     Review File, Tab 1 at 10-55. We do not consider this evidence because it is not
     material to the issue of whether the Board has jurisdiction over this appeal. See
     5 C.F.R. § 1201.115(d). However, even if we did consider this evidence, it would not
     affect our disposition in this case.
     “employment practice.”       Prewitt v. Merit Systems Protection Board, 133 F.3d
     885, 887 (Fed. Cir. 1998).
¶6         The administrative judge found that the appellant “failed to submit evidence
     or even allege” the occurrence of anything other than an internal selection process
     by his employing agency. See ID at 8. The appellant challenges his nonselection
     because he disagrees with the agency’s determination that he was not “mobile”
     and based upon allegations of discrimination and retaliation for EEO activity and
     whistleblowing. IAF, Tab 1; PFR File, Tab 1 at 5. The Board lacks jurisdiction
     over the appellant’s claims, however, because these allegations do not show that
     his nonselection constituted an employment practice. 3 Manno v. Department of
     Justice, 85 M.S.P.R. 696, ¶ 7 (2000) (finding that the appellant failed to allege or
     show that the agency’s alleged mishandling of his employment application was
     pursuant to or part of any rule or practice).

     Whistleblower Retaliation Claim
¶7         The Board generally does not have jurisdiction to review an agency’s
     decision not to select a particular applicant for a vacant position.          Sapla v.
     Department of the Navy, 118 M.S.P.R. 551, ¶ 8 (2012). The Board, however, may
     have jurisdiction over nonselection appeals in the context of an IRA appeal in
     which the appellant alleges retaliation under the Whistleblower Protection Act.
     Id. As the administrative judge does not appear to have considered whether the
     Board has jurisdiction over this case as an IRA appeal, and the parties have not
     been afforded the opportunity to address the issue of IRA jurisdiction under the
     proper jurisdictional standard, we find it appropriate to forward the appellant’s
     appeal to the regional office for docketing and adjudication as an IRA appeal.
     See Neice v. Department of Homeland Security, 105 M.S.P.R. 211, ¶ 17 (2007).

     3
       Absent an otherwise appealable action, the Board lacks jurisdiction over the
     appellant’s claims that his nonselection constituted discrimination and EEO retaliation.
     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).
After docketing this appeal, the administrative judge shall fully inform the
appellant of the jurisdictional requirements in an IRA appeal and determine
whether the Board has IRA jurisdiction over this matter, and then, if appropriate,
determine the merits.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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 your appeal to
the 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.
