                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     THOMAS E. HOPKINS, III,                         DOCKET NUMBER
                  Appellant,                         DE-3443-16-0406-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: October 13, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Thomas E. Hopkins, III, Fargo, North Dakota, pro se.

           Julia Lehning, 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 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.         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 was selected for a GS-11 Human Resources Specialist
     position in Fargo, North Dakota.       Initial Appeal File (IAF), Tab 1 at 8.      On
     June 13, 2016, the agency sent him an email containing a “formal offer” and
     informed him that someone would be in touch with him concerning a background
     check.     Id.   Less than 15 minutes later, the agency’s District Office Security
     Manager sent the appellant an email to begin the background investigation
     process. IAF, Tab 9 at 31-32. This email stated “Prior to your start date, your
     background must be completed.” Id. at 32. In a follow-up email dated that same
     day, the Security Manager stated:
              I [realize] your desired start date is July 10th; however, the
              background investigation process to obtain a prehire waiver that is
              required for you to start prior to the actual investigation completion
              takes approximately four to six weeks. The actual background
              investigation takes four to six months to complete. . . . July 10,
              2016 is not a set in stone start date, it’s a desired date[;] please
              do not make plans to start on that date until you hear further
              from me.
     Id. at 36. Two weeks later, when the agency began to arrange the appellant’s
     release from his employing agency (the Department of Veterans Affairs in
     Beckley, West Virginia), the agency again informed the appellant “we cannot
     gain you to our agency until the background investigation is cleared.” Id. at 64.
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     The appellant replied, “I understand about the investigation but I had to make a
     command decision on giving notice where I live.        . . .   I'll be in Fargo this
     weekend.”     Id. at 63.   The appellant then moved at his own expense from
     West Virginia to Fargo, and his employing agency obtained permission to back‑
     fill his position.
¶3         However, the early stages of the background check investigation revealed
     some information that was not resolved to the agency’s satisfaction and made it
     unwilling to sign a Pre-employment National Security Background Waiver. IAF,
     Tab 1 at 9. The agency therefore withdrew the offer of employment. Id.
¶4         The appellant filed an appeal in which he asserted that he had been
     subjected to a suitability determination. IAF, Tab 1. The administrative judge
     issued an acknowledgment order in which he informed the appellant that the
     Board does not have jurisdiction over a nonselection, and he gave the appellant
     notice of the elements and burdens for proving jurisdiction over his nonselection
     as an employment practices appeal and a suitability determination. IAF, Tab 2.
     He also informed the appellant that the Board might have jurisdiction over a
     nonselection appeal in limited circumstances under the Whistleblower Protection
     Act (WPA), the Veterans Employment Opportunities Act (VEOA), and the
     Uniformed Services Employment and Reemployment Rights Act (USERRA). Id.
     In response, the appellant argued that the agency had made a firm offer that was
     binding and tantamount to an appointment that could not be rescinded without
     affording him due process.     IAF, Tab 4 at 4-5.     He also contended that the
     withdrawal was a violation of a basic requirement for employment practices and a
     suitability determination. Id. The administrative judge dismissed the appeal on
     the written record upon finding that the appellant failed to make a nonfrivolous
     allegation of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 5. The appellant
     petitions for review. Petition for Review (PFR) File, Tab 1.
¶5         It is well-settled that the Board lacks jurisdiction over nonselections.
     Alvarez v. Department of Homeland Security, 112 M.S.P.R. 434, ¶ 6 (2009); Tines
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     v. Department of the Air Force, 56 M.S.P.R. 90, 93 (1992).                The Board has
     jurisdiction over suitability determinations, 5 C.F.R. § 731.501, but a “suitability
     action” is defined as a cancellation of eligibility, a removal, a cancellation of
     reinstatement eligibility, and a debarment. Alvarez, 112 M.S.P.R. 434, ¶ 7. A
     nonselection for a specific position is not a suitability action, even if it based on
     reasons similar to the criteria for making suitability determinations set forth
     at 5 C.F.R. § 731.202. Alvarez, 112 M.S.P.R. 434, ¶ 7; 5 C.F.R. § 731.203(b).
     Therefore, the administrative judge correctly found that the appellant’s
     nonselection was not an appealable suitability action under 5 C.F.R. part 731. ID
     at 3-4.
¶6          To the extent the appellant claimed below that the agency’s action violated
     a basic requirement for employment practices and is reviewable by the Board, we
     find that his allegation fails. IAF, Tab 4 at 4. An applicant for employment who
     believes that an employment practice applied to him by the Office of Personnel
     Management (OPM) violates a basic requirement in 5 C.F.R. § 300.103 is entitled
     to appeal to the Board. Sauser v. Department of Veterans Affairs, 113 M.S.P.R.
     403,      ¶6   (2010);   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.          Sauser, 113 M.S.P.R. 403, ¶ 6.          “Employment
     practices,”     as   defined   in     OPM’s   regulations,    “affect   the    recruitment,
     measurement, ranking, and selection” of applicants for positions in the
     competitive service. 5 C.F.R. § 300.101. The appellant’s concerns are about the
     agency’s actions after it selected him, not questions about how it arrived at its
     decision to select one candidate over another.         Thus, he has not identified an
     employment practice subject to review by the Board.
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¶7        Second, the appellant has not alleged that an employment practice was
     applied to him by OPM, as required by 5 C.F.R. § 300.104(a), or that a valid
     employment practice administered by OPM was misapplied to him by the agency,
     as required by Dowd v. United States, 713 F.2d 720, 724 (Fed. Cir. 1983). Third,
     the appellant has not alleged that an employment practice applied to him violates
     one of the basic requirements contained in 5 C.F.R. § 300.103.         Finally, the
     alleged violations do not concern matters related to his status as an applicant for
     employment prior to his selection.      However, only “candidates” may bring
     employment practices appeals to the Board under 5 C.F.R. § 300.104(a).
     National    Treasury     Employees      Union     v.    Office    of     Personnel
     Management, 118 M.S.P.R. 83, ¶ 9 (2012).        Therefore, the appellant has not
     raised a cognizable employment practices claim within the Board’s jurisdiction.
¶8        As the administrative judge correctly stated in his acknowledgment order,
     the Board has jurisdiction over nonselections in limited circumstances under the
     WPA, VEOA, and USERRA. Sapla v. Department of the Navy, 118 M.S.P.R.
     551, ¶ 8 (2012); IAF, Tab 2. The appellant had the opportunity to raise a claim
     under one of these authorities but he did not do so, and we do not consider
     them further.
¶9        The appellant alleged below and reiterates on review that the agency’s firm
     offer could not be withdrawn without affording him due process. IAF, Tab 4 at 4;
     PFR File, Tab 1 at 7. He cites no legal authority for this proposition, and we are
     aware of none. He further contends that he made Permanent Change of Station
     (PCS) arrangements and that the offer was falsely portrayed as a tentative offer.
     IAF, Tab 4 at 4-5. We disagree. The firm offer email did not contain the word
     “tentative.” IAF, Tab 1 at 8. However, the vacancy announcement stated that the
     position required the successful completion of a background investigation, and
     the appellant received numerous emails, beginning only a few minutes after the
     firm offer email, from the agency indicating that he was required to complete a
     background investigation before he could come on board. IAF, Tab 9 at 24, 32,
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      36, 64. The appellant specifically stated that he understood. Id. at 63. In order
      to be appointed to a position in the civil service, an authorized appointing official
      must formally and unequivocally act to appoint that individual. Lewis v. General
      Services Administration, 54 M.S.P.R. 120, 122 (1992). Although the appellant
      was selected for the position, the actual appointment was subject to the successful
      completion of a background investigation; because he did not meet this condition,
      his selection did not amount to an appointment.         Lewis, 54 M.S.P.R. at 123.
      Under the circumstances, the right to due process did not attach.
¶10         Moreover, by describing his relocation in terms of PCS arrangements, the
      appellant implied that there was some sort of official involvement or
      responsibility in his move to Fargo.     On the contrary, the appellant was well
      aware that the agency would not pay relocation expenses.               The vacancy
      announcement explicitly stated that relocation expenses would not be authorized.
      IAF, Tab 9 at 25.      Further, when the appellant received an automatically
      generated email from a “PCS Travel Portal” that had been sent in error, he
      contacted the agency because he did not expect that he would receive relocation
      expenses. Id. at 53. Even though the agency specifically instructed him that his
      proposed start date was not set in stone and that the preliminary background
      investigation process would take 4 to 6 weeks, id. at 36, he chose to relocate.
      The consequences of that decision are his responsibility.
¶11         In his petition for review, the appellant presents documents, some of which
      are a part of the record below, and some of which are not.          Evidence that is
      already a part of the record is not new.            Meier v. Department of the
      Interior, 3 M.S.P.R. 247, 256 (1980).      The new documents are mostly dated
      before the close of the record below. None of the new documents, however, are
      relevant to the issue of jurisdiction, and we have not relied on them.
      Additionally, the appellant’s arguments on review concerning the matters at issue
      in his background investigation are not relevant to the issue of jurisdiction.
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¶12         Accordingly, we find that the administrative judge correctly 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.
            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
                                                                                8

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.
