                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK R. MACPHERSON,                             DOCKET NUMBER
                  Appellant,                         SF-300A-14-0385-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: September 1, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mark R. MacPherson, Honolulu, Hawaii, pro se.

           Emily Urban, Esquire, San Francisco, California, 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 this 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
     interpretation of statute or regulation or the erroneous application of the law to

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     the facts of the case; the 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        An applicant for employment who believes that an employment practice
     applied to him by the Office of Personnel Management (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). 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.
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¶3        Additionally, in order for the Board to have jurisdiction over an
     employment practices appeal, it is “necessary that the challenged employment
     practice have been applied to the applicant as the basis for the adverse hiring
     decision.” Dow v. General Services Administration, 590 F.3d 1338, 1342 (Fed.
     Cir. 2010); see 5 C.F.R. § 300.104(a) (an applicant is entitled to relief from an
     unlawful employment practice that “was applied to him”).              An agency’s
     misapplication of a valid OPM requirement may constitute an employment
     practice, but an individual agency action or decision that is not a rule or practice
     of some kind does not qualify as an employment practice. E.g., Sauser v.
     Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 7 (2010).
¶4        In this employment practices appeal, the appellant alleged that the work
     product knowledge and skill assessment (WPKSA) and scoring formula that the
     agency used in the selection process for merit promotion announcement
     13CE-CIN0108-1811-13-RB violated the basic requirements for employment
     practices set forth in 5 C.F.R. § 300.103. Initial Appeal File (IAF), Tab 1 at 5.
     The appellant also argued that the agency misapplied the requirements of 5 C.F.R.
     § 335.103. Id. He waived his right to a hearing, the administrative judge set the
     close of the record, and the parties each made their final submissions.        IAF,
     Tabs 13, 30-34.
¶5        In her initial decision, the administrative judge found that both the WPKSA
     and the scoring formula used by the agency were employment practices as defined
     by 5 C.F.R. § 300.101, but that an agency task force, not OPM, developed and
     implemented the selection process at issue. IAF, Tab 35, Initial Decision (ID)
     at 4-7. Although the agency reviewed OPM’s analyses and guidance in creating
     the standards that it applied to the appellant, the administrative judge found that
     the appellant’s challenge involved the agency’s independent actions, not the OPM
     source materials. ID at 7. The administrative judge also found that, contrary to
     the appellant’s assertion, OPM was not significantly involved in Phase 1 of the
     assessment process, in that the actions that the appellant cited as demonstrating
                                                                                      4

     OPM’s involvement all related merely to the agency’s use of OPM’s USAJOBS
     website to post the vacancy and accept the applications as part of the first phase
     of the hiring process. ID at 8. Moreover, the administrative judge noted that,
     because the appellant did not challenge any portion of Phase 1, OPM’s
     involvement in that phase would not establish its involvement in the employment
     practices challenged in this appeal, i.e., the WPKSA in Phase 2, and the agency’s
     alleged failure to consider the appellant’s performance appraisals and incentive
     awards.   ID at 8-9.   The administrative judge similarly found that the Board
     lacked jurisdiction over the appellant’s allegations that the WPKSA and scoring
     formula were not based on a job analysis or professionally developed as required
     by 5 C.F.R. § 300.103, because the agency, not OPM, applied those employment
     practices to him.   The administrative judge, therefore, found these allegations
     must be addressed in the agency grievance process. ID at 10 (citing 5 C.F.R.
     § 300.104(c)).
¶6        Regarding the appellant’s claim that the agency misapplied 5 C.F.R.
     § 335.103, Requirement 3, because it failed to give due weight to performance
     evaluations and incentive awards in         the   merit promotion process, the
     administrative judge determined that the agency did not apply that employment
     practice to the appellant because such materials were considered following
     Phase 3 of the assessment process, which occurred after the agency eliminated the
     appellant from consideration.   ID at 9-12.   Likewise, the administrative judge
     found no jurisdiction over the appellant’s claim that the agency’s choice to
     include candidates rated Highly Qualified in addition to those deemed Best
     Qualified in Phase 3 of the assessment process violated 5 C.F.R. § 335.103,
     Requirement 4, which essentially requires agency promotion programs to identify
     the best qualified candidates for selection. ID at 12. Again, the administrative
     judge noted that the agency did so after it had eliminated the appellant, and the
     administrative judge found no evidence to indicate OPM’s involvement during
     this phase of the selection process. ID at 12-13. Finally, the administrative judge
                                                                                            5

     found that, in any event, the Board lacked jurisdiction over the appellant’s claims
     that the agency engaged in harmful procedural error in the selection process and
     committed a prohibited personnel practice. Id.
¶7         In his petition for review, the appellant reiterates his argument that the
     agency failed to ensure that the methods it used to evaluate candidates for
     promotion were consistent with 5 C.F.R. § 300.103. Petition for Review (PFR)
     File, Tab 1 at 6-10. He argues that the WPKSA and scoring formula were based
     on OPM work products such that it was sufficiently involved in administering
     those employment practices.        Id. at 7.    He again contends that the agency
     misapplied a valid employment practice, explaining that the agency did not base
     the Investigative Techniques competency for the position at issue on a job
     analysis as required by 5 C.F.R. § 300.103(a). Id. The appellant also reiterates
     his argument that the agency failed to give due weight to performance appraisals
     and incentive awards in the ranking and selection of candidates for the position at
     issue in this appeal and disagrees with the administrative judge’s finding that
     OPM’s involvement in those actions was not sufficiently significant to
     characterize either action as an employment practice administered by OPM. Id. at
     10-24. The agency has responded in opposition. PFR File, Tab 3.
¶8         We agree with the administrative judge that the appellant has failed to
     identify an employment practice that OPM is involved in administering or an
     OPM requirement that the agency misapplied, 2 and we find that she properly
     dismissed the appeal for lack of jurisdiction. Whether an agency relied upon a
     professionally developed job analysis is a basic requirement of a valid


     2
        In this context, the Board has found that the “misapplication of a valid OPM
     requirement” does not mean that the agency inaccurately evaluated a candidate using a
     valid OPM requirement. Rather, it means that the very application of the requirement
     to the candidate violated one of the basic requisites of 5 C.F.R. § 300.103. In other
     words, “misapplication of a valid OPM requirement” refers to the applicability of a
     requirement, rather than to the method of its application. See, e.g., Scott v. Department
     of Justice, 105 M.S.P.R. 482, ¶ 11 (2007).
                                                                                       6

     employment practice, such as a scoring formula or qualification standard for a
     position series. See Chadwell v. Merit Systems Protection Board, 629 F.3d 1306,
     1311 (Fed. Cir. 2010); Mapstone v. Department of the Interior, 106 M.S.P.R. 691,
     ¶¶ 13-14 (2007), modified on other grounds by 110 M.S.P.R. 122, ¶ 7 (2008).
     Here, the appellant has only asserted that the agency failed to use a professional
     job analysis to develop one criteria for the promotional opportunity at issue. PFR
     File, Tab 1 at 7.    Because the appellant has failed to allege that OPM was
     involved in developing or administering the alleged invalid criteria used by the
     agency, or that the agency misapplied an employment practice in the course of its
     merit promotion determination, his appeal is best characterized as a challenge to
     the agency’s individualized hiring decisions.           See, e.g., Prewitt, 133 F.3d
     at 887-88 (OPM not involved in the establishment of allegedly improper
     minimum qualifications); cf. Sauser, 113 M.S.P.R. 403, ¶ 8 (the agency’s
     assessment of the appellant’s qualifications was based on OPM’s general engineer
     qualification standards and was considered an employment practice); Mapstone,
     106 M.S.P.R. 691, ¶ 14 (the agency’s decision that the appellant was not qualified
     was based on OPM’s qualification standards and education requirements for the
     position series, thus constituting an employment practice).          The appellant’s
     citation to Azdell v. Office of Personnel Management, 87 M.S.P.R. 133 (2000),
     and to Morris v. Office of Personnel Management, 14 M.S.P.R. 578 (1983), do
     not assist him in establishing jurisdiction over his appeal because, unlike the
     instant matter, OPM was directly involved in the challenged employment practice
     in both of the cited cases. PFR File, Tab 1 at 8, 12.
¶9        As for the appellant’s claim that the agency failed to give due weight to his
     performance evaluations and incentive awards, the appellant’s own argument
     explicitly states that the agency took these actions, not OPM. PFR File, Tab 1
     at 11. Moreover, because the record indicates that the agency utilized this factor
     after it had eliminated the appellant, ID at 10-11, even if the appellant had
     somehow established OPM’s involvement, the appellant fails to show that the
                                                                                        7

      agency applied the employment practice to him.           The same is true for the
      appellant’s contention that the agency improperly considered those applicants
      found to be “Highly Qualified” in addition to those deemed “Best Qualified,”
      e.g., PFR File, Tab 1 at 15, and the appellant also fails to identify a valid OPM
      requirement that the agency misapplied to him.
¶10        Accordingly, we concur with the administrative judge that the appellant
      failed to establish Board jurisdiction over his employment practices appeal.

                         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
                                                                                  8

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.
