                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID J. HUERTA,                                DOCKET NUMBER
                   Appellant,                        SF-3443-16-0173-I-1

                  v.

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



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           David J. Huerta, San Marcos, California, pro se.

           Paul E. Gleason, Esquire, 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 employment practices 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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             In this appeal, the appellant challenged his nonselection for several criminal
     investigator positions. Initial Appeal File (IAF), Tab 1. Although he claimed
     eligibility for veterans’ preference, he specifically indicated that neither the
     Uniformed Services Employment and Reemployment Rights Act of 1994
     (codified at 38 U.S.C. §§ 4301-4333) nor the Veterans Employment Opportunities
     Act of 1998 was applicable to his appeal. Id. at 1, 4. He also indicated that he
     had not filed a whistleblowing complaint with the Office of Special Counsel. Id.
     at 4. He included the notice of results, which the agency sent him regarding two
     of the positions at issue. Id. at 6-7.
¶3             In his acknowledgment order, the administrative judge gave the appellant
     comprehensive notice of the elements and burdens of establishing jurisdiction
     over a nonselection, including an action alleging that an employment practice
     applied to him by the Office of Personnel Management (OPM) violated one of the
     basic requirements for employment practices set forth in 5 C.F.R. § 300.103(a).
     IAF, Tab 2 at 2-4 & n.3. In response, the appellant argued that he received three
     different ratings for the same position and grade and contended that, in doing so,
     the agency applied an employment practice to him that violated the basic
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     requirements for employment practices set forth in 5 C.F.R. § 300.103(a). IAF,
     Tab 4 at 3. The agency moved to dismiss the appeal for lack of jurisdiction, and
     the appellant responded in opposition to the agency’s motion. IAF, Tabs 7-8.
¶4        Without holding a hearing, the administrative judge dismissed the appeal
     for lack of jurisdiction because the appellant failed to identify the employment
     practice at issue, to assert that OPM was involved in its administration, or to
     identify the basic requirement of 5 C.F.R. § 300.103 that the employment practice
     allegedly violated.   IAF, Tab 9, Initial Decision (ID) at 3.   In his petition for
     review, the appellant argues that the agency changed the cutoff point for the best
     qualified score in order to select its preferred applicants. Petition for Review
     (PFR) File, Tab 1 at 3. He cites OPM’s administration of the USAJOBS website
     as evidence that OPM applied the employment practice to him. Id. The agency
     responds in opposition. PFR File, Tab 3.
¶5        An applicant for employment who believes that an employment practice
     applied to him by OPM violates a basic requirement set forth in 5 C.F.R.
     § 300.103 is entitled to appeal to the Board. 5 C.F.R. § 300.104(a). The Board
     has jurisdiction under 5 C.F.R. § 300.104(a) when two conditions are met: first,
     the appeal must concern an employment practice that OPM is involved in
     administering; and second, the appellant must make a nonfrivolous allegation that
     the employment practice violated one of the “basic requirements” for employment
     practices set forth in 5 C.F.R. § 300.103.       E.g., Meeker v. Merit Systems
     Protection Board, 319 F.3d 1368, 1373 (Fed. Cir. 2003); Mapstone v. Department
     of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008).
¶6        An “employment practice” includes “the development and use of
     examinations, qualification standards, tests, and other measurement instruments.”
     5 C.F.R. § 300.101. However, the Board has consistently held that its jurisdiction
     in this area does not extend to appeals of an individual’s score on a particular
     examination. See Dow v. Office of Personnel Management, 68 M.S.P.R. 285, 288
     (1995); Beam v. Office of Personnel Management, 61 M.S.P.R. 54, 59-60 (1994);
                                                                                       4

     Langster v. Department of Health & Human Services, 30 M.S.P.R. 435, 437 n.2
     (1986). Rather, the Board’s jurisdiction is limited to claims that an “employment
     practice” is generally applied in a discriminatory fashion or is inherently biased
     against a certain group of individuals. See Dow, 68 M.S.P.R. at 289.
¶7         Additionally, as noted above, OPM must have “applied” an employment
     practice to a candidate for the Board to have jurisdiction over an employment
     practices appeal. Dow v. General Services Administration, 590 F.3d 1338, 1342
     (Fed. Cir. 2010); 5 C.F.R. § 300.104(a).        In certain circumstances, OPM’s
     involvement in an agency’s selection process may be sufficient to characterize a
     nonselection action by that agency as a practice applied by OPM.          Prewitt v.
     Merit Systems Protection Board, 133 F.3d 885, 888 (Fed. Cir. 1998). For that
     prerequisite to be satisfied, however, OPM’s involvement in the selection process
     must be significant. Id. On that issue, we agree with the administrative judge
     that the appellant failed to assert below that OPM was involved significantly in
     the administration of any part of this selection process. ID at 3.
¶8         We also agree with the administrative judge that the appellant failed to
     identify the employment practice at issue or the basic requirement of 5 C.F.R.
     § 300.103, which that employment practice allegedly violated. ID at 3. Although
     the appellant claims on review that the agency changed the cutoff point for the
     best qualified cohort in order to select preferred candidates, he did not make this
     argument below. The Board 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). The appellant makes
     no such showing.     Instead, he argued below that the agency gave him three
     different ratings for the same job position and grade. IAF, Tab 8 at 3. As noted
     above, the Board’s employment practices jurisdiction does not extend to the
     review of an individual’s score on a particular examination.         See, e.g., Dow,
     68 M.S.P.R. at 288. Moreover, because each of the appellant’s scores was based
                                                                                       5

     on his individual responses to each separate vacancy announcement, a small
     variation in his scores on each application could be expected.
¶9         Based on the foregoing, we affirm the initial decision that dismissed 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 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.
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      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.
