       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                JERONE GALLOWAY,
                    Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2012-3203
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC300A110607-I-1.
                ______________________

                Decided: July 18, 2013
                ______________________

   JERONE GALLOWAY, of Alexandria, Virginia, pro se.

    DAVID D’ALESSANDRIS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. On
the brief were JAMES M. EISENMANN, General Counsel,
KEISHA DAWN BELL, Deputy General Counsel, and
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC.
                 ______________________
2                                       GALLOWAY   v. MSPB

     Before LOURIE, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
     Jerone Galloway (“Galloway”) petitions for review of
the final decision of the Merit System Protection Board
(“Board”), which dismissed his appeal for lack of jurisdic-
tion under 5 C.F.R. §§ 300.103 and 300.104. Because the
Board lacks jurisdiction over Galloway’s petition, we
affirm.
                      BACKGROUND
    Galloway was employed in the U.S. Coast Guard, part
of the Department of Homeland Security (“Agency”), as an
Integrated Logistics Specialist. In October 2009, Gallo-
way applied for a GS-0340-15 program manager position
under vacancy announcement number 09-2382-HQ-JH-M.
After two rounds of interviews, the Agency ranked Gallo-
way as the second most qualified remaining candidate.
The Agency offered the job to the highest ranked candi-
date, who declined the offer. Thereafter, Galloway con-
tends, the Agency filled the program manager position
pursuant to its direct hiring authority and hired another
individual. Galloway alleges that, on May 20, 2010, he
met with the selecting official in charge of the vacancy
announcement, Ms. Phan, to discuss the status of his
application. In that meeting, Ms. Phan allegedly told
Galloway that he was not selected because he does not
adequately articulate his thoughts to senior leaders, he
does not display the capacity for critical thinking, and he
is not dependable.
    Galloway filed an appeal with the Board alleging that
the Agency committed several prohibited personnel
practices and violated the merit system principles. The
administrative judge’s initial decision dismissed Gallo-
way’s appeal because the Board does not have jurisdiction
over prohibited personnel practices or merit system
principles “absent an otherwise appealable claim.” Gal-
loway petitioned the Board for review of the initial deci-
sion. The Board denied the petition for review but noted
GALLOWAY   v. MSPB                                        3

that Galloway also argued that the Board has jurisdiction
over his appeal as an employment practice claim under 5
C.F.R. § 300.104. As such, the Board forwarded Gallo-
way’s appeal to the Washington Regional Office “for
docketing as an employment practice appeal under 5
C.F.R. 300, Subpart A.”
    In his employment practice appeal, Galloway argued
that jurisdiction was proper because (1) the Office of
Personnel Management (“OPM”) delegated its hiring
authority to the Agency and (2) by applying non-merit
factors (those articulated by Ms. Phan) only to Galloway,
the Agency administered an employment practice that
violated the basic requirements of 5 C.F.R § 300.103. The
administrative judge again found that the Board lacked
jurisdiction. Galloway petitioned the Board for review.
The Board agreed with the administrative judge that,
even assuming sufficient OPM involvement in Galloway’s
non-selection, the “procedural irregularities” in the selec-
tion process that Galloway identified did not amount to an
employment practice that violated one of the basic re-
quirements of 5 C.F.R. § 300.103. As such, the Board
denied Galloway’s petition. Galloway appealed and we
have jurisdiction pursuant to 28 U.S.C § 1295(a)(9).
    Our review in an appeal from a decision of the Board
is limited. A decision of the Board must be affirmed
unless it is “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” Dickey v. Office of Pers. Mgmt., 419 F.3d 1336,
1339 (Fed. Cir. 2005). We review the question of whether
the Board has jurisdiction over an appeal de novo. See
Chadwell v. Merit Sys. Prot. Bd., 629 F.3d 1306, 1308-09
(Fed. Cir. 2010); Herman v. Dep’t of Justice, 193 F.3d
1375, 1378 (Fed. Cir. 1999).
4                                         GALLOWAY   v. MSPB

                        DISCUSSION
     The jurisdiction of the Board is not plenary; its juris-
diction is limited to actions that are designated as ap-
pealable to the Board under any law, rule, or regulation.
See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886
(Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). For exam-
ple, an agency’s decision to not select a candidate for an
open position is generally not appealable to the Board.
Prewitt, 133 F.3d at 885 (citing Ellison v. Merit Sys. Prot.
Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993) (non-selection for
promotion); Diamond v. United States Postal Serv., 51
M.S.P.R. 448, 450 (1991) (non-selection for appointment),
aff’d, 972 F.2d 1353 (Fed. Cir. 1992).
    Galloway has the burden of establishing the Board’s
jurisdiction by a preponderance of the evidence. See 5
C.F.R. § 1201.56(a)(2). In order to meet this burden,
Galloway must demonstrate that the alleged actions
constitute an “employment practice” and that OPM was
involved in the administration of that practice. 5 C.F.R.
§§ 300.101, .104; Bush v. Office of Pers. Mgmt., 315 F.3d
1358, 1360 (Fed. Cir. 2003). In addition, Galloway must
make a non-frivolous allegation that the employment
practice violated one of the “basic requirements” of 5
C.F.R. § 300.103. See 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 Manage-
ment violates a basic requirement in § 300.103 is entitled
to appeal to the Merit Systems Protection Board under
the provisions of its regulations.”); Meeker v. Merit Sys.
Prot. Bd., 319 F.3d 1368, 1373 (Fed. Cir. 2003). Accord-
ingly, we begin with the question of whether Galloway
identifies an employment practice applied by the OPM
that violated the basic requirements of Section 300.103.
    Section 300.101 defines an employment practice as
any practice “that affect[s] the recruitment, measurement,
ranking, and selection of individuals for initial appoint-
ment and competitive promotion in the competitive ser-
vice.” 5 C.F.R. § 300.101. Section 300.101 specifically
GALLOWAY   v. MSPB                                          5

includes “the development and use of examinations,
qualification standards, tests, and other measurement
instruments” as employment practices. Id.; Meeker, 319
F.3d at 1373 (scoring formula for administrative law
judge examinations is an employment practice); Bush, 315
F.3d at 1360 (OPM decision to develop new administra-
tive law judge examination is an employment practice);
Lackhouse v. Merit Sys. Prot. Bd., 734 F.2d 1471, 1474
(Fed. Cir. 1984) (codified rule regarding passing over a
preference eligible employee is an employment practice).
In addition, we have held that “employment practice”
should be construed broadly. Dowd v. United States, 713
F.2d 720, 723—24 (Fed. Cir. 1983); cited with approval in
Bush, 315 F.3d at 1360-61; Prewitt, 133 F.3d at 887.
     An agency action that is not performed pursuant to a
rule, or as part of a practice of some kind, is not an em-
ployment practice. See Prewitt, 133 F.3d at 887 (racial
misidentification is “an irregularity in the section process
rather than an application of a specific rule, provision, or
policy”); Wilcox v. Merit Sys. Prot. Bd., Nos. 99-3314, 99-
3315, 2000 WL 266481, at *3 (Fed. Cir. Mar. 9, 2000) (
non-precedential) (decision to not fill a vacant position,
rescind the announcement, and hire a current employee to
fill another position in same office not made “pursuant to
a rule or practice of some kind”).
    Galloway argues that the Agency’s application of
“non-merit” factors (the issues allegedly articulated by
Ms. Phan) amounted to an employment practice. Gallo-
way asserts that these factors were not applied to any
other candidate, were not included in the vacancy an-
nouncement, and should have been assessed as part of the
interview process. Galloway argues that application of
these factors in this manner amounts to an employment
practice because the regulatory definition includes prac-
tices that affect the “selection of individuals for . . . com-
petitive promotion in the competitive service” and
“includes the development and use of . . . other measure-
ment instruments.”
6                                         GALLOWAY   v. MSPB

    We agree with the Board that the Agency actions at
issue do not amount to an employment practice. First,
Galloway’s non-selection was not the result of the Agency
applying a particular rule, policy, or practice. Prewitt,
133 F.3d at 887. Galloway fails to identify an Agency
practice or rule that prevented him from applying for the
vacancy or resulted in his non-selection. To the contrary,
the record establishes that Galloway applied for the
vacancy, was fully considered, and then not selected.
    Second, although Galloway asserts that the Agency
applied “non-merit” factors to him alone, the comments
attributed to Ms. Phan indicate that his non-selection
was, in fact, merit based. As Galloway explained in his
brief, “merit factors” are those that reflect a candidate’s
“ability to perform the job.” The attributes allegedly
identified by Ms. Phan (an inability to articulate thoughts
to senior leaders, an incapacity for critical thinking, and a
lack of dependability) would, if true, certainly address
Galloway’s “ability to perform the job.” Ms. Phan’s al-
leged comments, therefore, appear to reflect a merit-
based, individual evaluation of Galloway’s qualifications
for the vacancy, not an application of an Agency practice,
rule, or policy.
    Third, contrary to Galloway’s suggestion, not every
action related to “competitive promotion in the competi-
tive service” is an employment practice. See, e.g., Prewitt,
133 F.3d at 886-87. Likewise, there is no indication that
the Agency developed or used “other measurement in-
struments” that resulted in Galloway’s non-selection.
Indeed, the record reveals that Galloway was fully consid-
ered, upon merit, and not selected.
    Because the Agency actions at issue here were not
pursuant to a rule, practice or policy, we agree with the
Board that Galloway has not identified an employment
practice under 5 C.F.R. § 300. Galloway’s failure to
identify an employment practice undermines his argu-
ment that jurisdiction of the Board arises under 5 C.F.R. §
300.104. We next address whether Galloway has estab-
GALLOWAY   v. MSPB                                         7

lished sufficient OPM involvement in the Agency’s ac-
tions.
    In addition to being an employment practice, the ac-
tions at issue must have been “applied . . . by the Office of
Personnel Management.” 5 C.F.R. § 300.104(a). OPM’s
involvement in an agency’s selection process, if signifi-
cant, may characterize the agency’s actions as being
“applied . . . by” the OPM. See Maule v Merit Sys. Prot.
Bd., 812 F.2d 1396, 1398 (Fed. Cir. 1987) (jurisdiction
proper where the OPM made a “pivotal decision” that
denied petitioner opportunity to compete for position);
Lackhouse, 734 F.2d at 1474 (requirement that OPM
approve agency’s action gave it “critical role” and made
jurisdiction proper). When the OPM has a lesser role,
jurisdiction is lacking. See Prewitt, 133 F.3d at 888
(jurisdiction lacking absent allegation OPM was actively
involved in practices at issue); Dowd v. Office of Pers.
Mgmt., 745 F.2d 650, 651 (Fed. Cir. 1984) (jurisdiction
lacking where the OPM “had simply been brought into the
case by the [Board] as the only possible respondent under
[5 C.F.R. § 300.104(a)]”).
    Galloway argues that the necessary OPM involvement
is present here because the OPM delegated its selection
authority to the Agency and the Coast Guard’s instruc-
tions regarding the program manager vacancy provide
that the instructions shall be used in conjunction with 5
C.F.R. Parts 300 and 335 and appropriate issuances of the
OPM. Galloway cites Lackhouse as support for his con-
tention. For its part, the Board notes that it appears the
Coast Guard generally classifies all positions in concert
with OPM guidelines and that this is the full extent of
OPM involvement here.
    We agree with the Board that Galloway has not
demonstrated significant OPM involvement in his non-
selection. See Prewitt, 133 F.3d at 888. Unlike in Lack-
house, there is no evidence of the OPM playing a “critical
role” in Galloway’s non-selection. Lackhouse, 734 F.2d at
1474. Although the Agency may have been generally
8                                          GALLOWAY   v. MSPB

operating under OPM regulations, the record does not
establish that the OPM had an active role in, or influence
over, Galloway’s non-selection. In particular, Galloway
attributes the application of “non-merit” factors, which
forms the basis of his claim, to Ms. Phan, not the OPM.
Nor does Galloway suggest that the OPM was involved in
applying these factors to him alone. Because Galloway
has not demonstrated that the OPM was significantly
involved in the actions that form the basis of his claim, we
agree with the Board that the necessary OPM involve-
ment is lacking.
    Having determined that Galloway has failed to
demonstrate either an employment practice or significant
OPM involvement, we affirm the Board’s decision that it
lacked jurisdiction over Galloway’s claims and do not
address the remaining issues.
                       CONCLUSION
    Because we agree with the Board that Galloway has
not demonstrated either an employment practice or
significant OPM involvement, we affirm the Board’s
decision that it lacked jurisdiction over Galloway’s peti-
tion.
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
