                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM JOHN PHILLPOTT, II,                     DOCKET NUMBER
                   Appellant,                        AT-3443-15-0249-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 16, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           William John Phillpott, II, Metairie, Louisiana, pro se.

           Obisia Rodriguez, Gulfport, Mississippi, 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 for lack of jurisdiction his appeal regarding the agency’s failure to
     refer him to the hiring official for two competitive vacancies.        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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. Except as expressly MODIFIED by this Final
     Order to consider the appellant’s timely response to the administrative judge’s
     order on the jurisdictional issue, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant, a permanent Federal employee with the Social Security
     Administration, filed an appeal with the Board after his applications for two
     human resources vacancies with the Department of the Navy were not referred to
     the hiring official. Initial Appeal File (IAF), Tab 1 at 1, 3, 5, 7. He alleged that
     he was rated as eligible but not among the best qualified candidates for both
     vacancy announcements, and thus was not referred to the hiring official for
     further review. Id. at 5. He asserted that, as a GS-11 permanent competitive
     employee, he qualified for noncompetitive special hiring authority and thus his
     name should have been sent to the hiring official on a noncompetitive eligible
     list. Id.
¶3         In an acknowledgment order, the administrative judge notified the appellant
     that he had the burden of proving that the Board has jurisdiction over his appeal
     by preponderant evidence, and that the Board generally lacks the authority to
     address a claim than an applicant was not selected for a vacancy. IAF, Tab 2 at 2.
                                                                                           3

     The administrative judge informed the appellant that the Board has found
     exceptions   when    the   agency’s    decision   was   made      in   retaliation   for
     whistleblowing, violated the candidate’s veterans’ preference rights, or was the
     product of discrimination based on uniformed service. Id. The administrative
     judge ordered the appellant to file evidence and argument to prove that the
     appealed action was within the Board’s jurisdiction.
¶4         The appellant timely responded that the agency’s failure to allow him to
     compete for the positions in question constituted a prohibited personnel practice
     that violated several unspecified provisions of the merit system principles set
     forth in 5 U.S.C. § 2301. IAF, Tab 4 at 4. He repeated his assertion that, as a
     permanent Federal employee seeking reassignment, he should have been
     noncompetitively referred to the hiring official pursuant to a special hiring
     authority. Id. at 4-5. The agency replied that the appellant had applied for two
     separate competitive vacancies and that it had properly found that he was not
     among the best qualified candidates. IAF, Tab 5 at 6, 11. The agency noted that
     the appellant had conceded that he did not possess any human resources
     experience but met the education requirements, making him only minimally
     qualified for the positions. Id. at 14-15; see IAF, Tab 1 at 5.
¶5         The administrative judge did not grant the appellant’s request for a hearing
     because there was no factual dispute bearing on the jurisdictional issue, and he
     dismissed the appeal for lack of jurisdiction in an initial decision based on the
     written record. IAF, Tab 6, Initial Decision (ID) at 1. The administrative judge
     noted that, in the absence of an otherwise appealable action, the Board generally
     lacks jurisdiction to consider whether a particular agency action resulted from a
     prohibited personnel practice. ID at 2. He stated that the appellant had failed to
     respond to his order on the jurisdictional issue and found that the record
     contained no evidence supporting a finding that the improper hiring practices
     alleged by the appellant were within the Board’s jurisdiction. ID at 3.
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                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        The appellant argues that the initial decision erroneously stated that he did
     not respond to the acknowledgment order. Petition for Review (PFR) File, Tab 1
     at 4; see ID at 3. This is true. The record shows that the appellant filed a timely
     response to the administrative judge’s order on the jurisdictional issue, and thus
     we have considered this argument and evidence on review.         See IAF, Tab 4.
     However, we find that the administrative judge’s error did not adversely affect
     the appellant’s substantive rights because none of the evidence and argument
     submitted by the appellant supports a finding of Board jurisdiction over his
     appeal. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
¶7        The appellant also submits new evidence on review, stating that the
     documents were “in [his] possession awaiting some form of contact” from the
     Board or the agency, and that he planned to submit them during mediation or
     prior to the requested hearing.   PFR File, Tab 1 at 3-4.      He argues that the
     acknowledgment order did not inform him that an initial decision would be made
     following the submission of his pleading on the jurisdictional issue, or else he
     would have submitted all of his supporting evidence at that time. Id. at 4. Under
     5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first
     time with the petition for review absent a showing that it was unavailable before
     the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
     Service, 3 M.S.P.R. 211, 214 (1980). In contrast to the appellant’s assertion, the
     acknowledgment order clearly informed him that he had the burden of proving
     that his appeal was within the Board’s jurisdiction, and that the record on
     jurisdiction would close 25 days after the date of the order. IAF, Tab 2 at 1-2.
     We find that the appellant’s submission on review does not constitute new
     evidence and further note that the submitted documents concerning various hiring
     authorities do not support a finding that the Board has jurisdiction over the
     present appeal. See PFR File, Tab 1 at 8-22.
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¶8           The administrative judge correctly found that the Board lacks jurisdiction
     over the appellant’s claim that the agency improperly excluded him from referral
     to the hiring official for various vacancies.        The Board generally lacks
     jurisdiction over an individual’s nonselection for a vacant position. Prewitt v.
     Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998). Although
     the appellant maintains on review that the administrative judge mischaracterized
     his nonreferral appeal as a nonselection appeal, he has not presented any
     argument or evidence that his claim is within the Board’s jurisdiction, despite
     detailed notice of his burden of proof in the acknowledgment order. See PFR
     File, Tab 1 at 4, 6; IAF, Tab 2 at 2, Tab 4. His argument on review that he
     applied for the vacancies as a noncompetitive preference eligible is immaterial to
     the jurisdictional question.   See PFR File, Tab 1 at 5. The Standard Form 50
     submitted by the appellant indicates that he is not a veteran, and he has not
     alleged that the agency decision violated his veterans’ preference rights or was
     motivated by discrimination on the basis of his uniformed service.       See IAF,
     Tab 1 at 1, 7.    Thus, the record does not support a claim that the Board has
     jurisdiction over his appeal under the Veterans Employment Opportunities Act of
     1998 or the Uniformed Services Employment and Reemployment Rights Act of
     1994.
¶9           The appellant does not allege that the agency’s decision was made in
     retaliation for whistleblowing or that the Board has jurisdiction over his claim as
     an independent right of action (IRA) appeal. The Board has jurisdiction over an
     IRA appeal if the appellant exhausts his administrative remedies before the Office
     of Special Counsel (OSC) and makes nonfrivolous allegations that: (1) he made a
     disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in protected activity
     described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
     disclosure or protected activity was a contributing factor in the agency’s decision
     to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
     5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs,
                                                                                       6

      242 F.3d 1367, 1371 (Fed Cir. 2001). In his initial appeal, the appellant reported
      that he had not filed a whistleblowing complaint with OSC. IAF, Tab 1 at 4.
      Although the appellant refers to communications with OSC on review, he does
      not allege he filed a complaint of whistleblower reprisal with OSC, or that he
      made any protected disclosure or engaged in whistleblowing activity. See PFR
      File, Tab 1 at 4.
¶10         On review, the appellant states that he is requesting a review of his
      prohibited personnel practice allegations because OSC informed him that the
      Board has “established certain requirements or elements for providing that a
      prohibited personnel practice may have occurred.”       Id.   He misinterprets this
      statement as proof that the Board has jurisdiction over his appeal. Allegations of
      prohibited personnel practices under 5 U.S.C. § 2302(b) or of a violation of the
      merit systems principles under 5 U.S.C. § 2301 are not an independent source of
      Board jurisdiction. See D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 48
      (1992); 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).
¶11         Finally, we note that the appellant initially characterized his claim as an
      “employment practices appeal” on his appeal form, but he has not repeated this
      allegation on review. IAF, Tab 1 at 3; PFR File, Tabs 1, 4-5. In any event, the
      record evidence demonstrates that the present appeal constitutes a challenge to an
      individual selection process for particular positions with the agency, and that the
      appellant has alleged no facts that would reasonably raise a claim that might be
      within the Board’s jurisdiction as an employment practices appeal. See Prewitt,
      133 F.3d at 887; 5 C.F.R. §§ 300.103-300.104, 1201.3(a)(7).
¶12         Thus, we find that, despite erroneously stating that the appellant had not
      responded to his order on the jurisdictional issue, the administrative judge
      correctly found that the Board lacks jurisdiction over the appellant’s allegation
      that the agency improperly excluded him from referral to the hiring official.
                                                                                        7

                    NOTICE TO THE APPELLANT REGARDING
                       YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.      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
United States 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
                                                                                8

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.
