                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRETT D. FLEISCH,                               DOCKET NUMBER
                    Appellant,                       DC-3443-16-0313-I-1

                  v.

     NATIONAL SCIENCE                                DATE: December 6, 2016
       FOUNDATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brett D. Fleisch, Riverside, California, pro se.

           Deanne Sobczak, Arlington, Virginia, 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 require d 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).

                                      BACKGROUND
¶2         The appellant was an employee of the University of California.           Initial
     Appeal File (IAF), Tab 8 at 13.          From February 13 to March 28, 2004, the
     appellant was appointed to the agency as an intermittent expert. IAF, Tab 3 at 11,
     14. The appointment was nonpermanent and in the excepted service. Id. From
     March 29, 2004, until September 30, 2007, he was detailed to the agency under
     the Intergovernmental Personnel Act (IPA). IAF, Tab 3 at 14, Tab 8 at 13-16. In
     January 2014, he applied for a position with the agency that was advertised under
     vacancy announcement number ACI-2014-0001; however, the agency did not
     select him for the position. IAF, Tab 3 at 14, 47.
¶3         The appellant filed this appeal on January 23, 2016, and requested a
     hearing. IAF, Tab 1. He alleged that the agency denied him reinstatement when
     it did not select him for the position that he applied for in January 2014 and that
     the agency failed to recognize his prior Federal service as an IPA employee when
     considering his application. Id. at 4.
                                                                                            3

¶4         In an acknowledgment order, the administrative judge informed the
     appellant of his burden of proving the Board’s jurisdiction over his appeal. IAF,
     Tab 2 at 2-5. The administrative judge noted that, although the Board generally
     lacks jurisdiction over a nonselection, there are five exceptions whereby the
     Board has jurisdiction over a nonselection. Id. at 2-3. In particular, he apprised
     the appellant of the requirements of showing Board jurisdiction over an alleged
     employment practice violation under 5 C.F.R. § 300.104(a).             Id. at 3-5.    He
     ordered the appellant to file evidence and argument on the jurisdictional issue.
     Id. at 5. The appellant responded that the Board had jurisdiction over his appeal
     because the agency and the Office of Personnel Management (OPM) had applied
     to him an employment practice in violation of 5 C.F.R. § 300.103 by using
     “faulty data” in his Standard Form 50 (SF-50) that “did not give proper credit for
     [F]ederal service time to IPAs.” IAF, Tab 3 at 4. 2 He also raised a claim of
     discrimination against IPA employees. Id. The agency argued that the appeal
     should be dismissed for lack of jurisdiction and as untimely filed. IAF, Tab 8
     at 4-8.   The appellant filed a pleading in response that raised another
     discrimination claim. IAF, Tab 9. In a second order, the administrative judge
     explained to the appellant the relevant jurisdictional and timeliness issues. IAF,
     Tab 12.   He ordered the appellant to respond to these issues.           Id. at 3.   The
     appellant’s response to the order was rejected as untimely filed. IAF, Tab 14.
¶5         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial
     Decision (ID) at 1, 6.      Specifically, the administrative judge found that the
     agency put the appellant on notice that he would not be considered a Federal
     employee during the time he served as an IPA employee.                 ID at 4.      The


     2
      Although the appellant cited “5 U.S.C. § 300.103,” which does not exist, we assume
     he meant to refer to 5 C.F.R. § 300.103. IAF, Tab 3 at 4; see Thompson v. Office of
     Personnel Management, 81 M.S.P.R. 677, ¶ 5 (1999) (stating that a pro se appellant is
     not required to plead issues with the precision of an attorney in a judicial proceeding).
                                                                                             4

     administrative judge further found that, instead of challenging an employment
     practice that violated a requirement set forth in 5 C.F.R. § 300.103, the appellant
     was challenging his nonselection for a specific position, a matter over which the
     Board lacks jurisdiction. ID at 4-5. The administrative judge found, too, that the
     appellant was not entitled to reinstatement because he was not previously
     employed in the competitive service and that the Board lacks jurisdiction to
     review his reinstatement claim under 5 C.F.R. § 315.401.                    ID at 5-6.
     Additionally, the administrative judge found that, to the extent the appellant
     raised claims of discrimination and retaliation, such claims were beyond the
     Board’s purview absent an appealable action. ID at 6. Finally, the administrative
     judge denied the appellant’s request for a hearing because he had failed to raise a
     nonfrivolous allegation of Board jurisdiction. Id.
¶6         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tabs 1-4. The agency has filed a response. PFR File, Tab 6. The appellant
     has filed a reply to the agency’s response. PFR File, Tab 7.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.            Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).            If an appellant makes a
     nonfrivolous allegation 3 of Board jurisdiction over an appeal, he is entitled to a
     jurisdictional hearing at which he must prove jurisdiction by a preponderance of
     the evidence. 4 Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
     (Fed. Cir. 2006) (en banc), superseded on other grounds as stated in Clark v.
     U.S. Postal Service, 123 M.S.P.R. 466 (2016); 5 C.F.R. § 1201.56(b)(2)(i)(A).

     3
       A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
     issue. 5 C.F.R. § 1201.4(s).
     4
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        5

¶8         Generally, a nonselection is not appealable directly to the Board. Prewitt v.
     Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998).          As the
     administrative judge correctly informed the appellant, however, 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.     IAF, Tab 2 at 3-4; Burroughs v. Department of the Army,
     116 M.S.P.R. 292, ¶ 15 (2011); 5 C.F.R. § 300.104(a).              The Board has
     jurisdiction over an employment practice claim under 5 C.F.R. § 300.104(a) when
     the following two conditions are met:          (1) the appeal must concern an
     employment practice that OPM is involved in administering; and (2) 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.    Burroughs, 116 M.S.P.R. 292, ¶ 15.           Moreover, an agency’s
     misapplying a valid OPM requirement may constitute an appealable employment
     practice action. Scott v. Department of Justice, 105 M.S.P.R. 482, ¶ 10 (2007).
     The term “employment practices” includes the development and use of
     examinations, qualification standards, tests, and other measurement instrum ents.
     Id.; 5 C.F.R. § 300.101.    Although that term is to be construed broadly, “an
     individual agency action or decision that is not made pursuant to or as part of a
     rule or practice of some kind does not qualify as an ‘employment practice.’”
     Prewitt, 133 F.3d at 887.
¶9         Here, the administrative judge properly found that the appellant failed to
     nonfrivolously allege that the agency or OPM applied an employment practice to
     him that violated a requirement set forth in 5 C.F.R. § 300.103. ID at 4-5. The
     appellant argued below that the agency’s and OPM’s refusal to recognize as
     Federal service his detail to the agency under the IPA violated 5 C.F.R.
     § 300.103(c) because this meant he was discriminated against based on a
     nonmerit factor. IAF, Tab 3 at 4. However, we find that he has failed to identify
     an employment practice that OPM is involved in administering.             See, e.g.,
                                                                                        6

      Richardson v. Department of Defense, 78 M.S.P.R. 58, 61 (1998) (finding no
      jurisdiction over an employment practices appeal when the appellant failed to
      identify a basic requirement that was missing from the instrument the agency used
      to evaluate her application and she was simply contesting the agency’s rating and
      handling of her individual application).
¶10        Further, we agree with the administrative judge’s finding that the Board
      lacks jurisdiction to review a denial of reinstatement claim under 5 C.F.R.
      § 315.401. ID at 6; see Hicks v. Department of the Navy, 33 M.S.P.R. 511, 513
      (1987) (finding that the administrative judge correctly held that 5 C.F.R.
      § 315.401 does not provide the Board with jurisdiction over an agency’s alleged
      denial of reinstatement rights under that section).    Because the appellant has
      failed to specify a statute or regulation that provides the Board with jurisdiction
      over a denial of reinstatement claim, we decline to review the administrative
      judge’s finding that the appellant is not entitled to reinstatement. ID at 5-6; see
      Hipona v. Department of the Army, 39 M.S.P.R. 522, 525 (1989) (stating that
      there is no statute or regulation that provides the Board with jurisdiction to
      review an agency’s decision to deny reinstatement eligibility to an individual
      applying for employment).
¶11        In his petition for review, the appellant reasserts that OPM and the agency
      discriminated against him by refusing to recognize his detail to the agency under
      the IPA as Federal service. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. However,
      as stated above, he has failed to specify an employment practice that OPM is
      involved in administering. Burroughs, 116 M.S.P.R. 292, ¶ 15. He also reiterates
      his claim that the agency denied him reinstatement, but fails to state a basis for
      Board jurisdiction over such claim. PFR File, Tab 1 at 1-2, Tab 4 at 3, Tab 7. In
      addition, his arguments that he has reinstatement eligibility because he performed
      Federal service as an IPA employee and that his SF-50 is missing data are
      insufficient to establish Board jurisdiction. PFR File, Tab 1 at 1-2, Tab 2, Tab 4
      at 3, Tab 7. The appellant claims that the administrative judge ignored the “Cusik
                                                                                             7

      memo” in his pleading. PFR File, Tab 7; IAF, Tab 3 at 15-27. However, an
      administrative judge’s failure to mention all of the evidence of record does not
      mean that he did not consider it in reaching his decision. Marques v. Department
      of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
      (Fed. Cir. 1985) (Table).    Moreover, the “Cusik memo” concerning the ethical
      obligations of individuals serving on detail to Federal agencies under the IPA is
      not relevant to the dispositive jurisdictional issue before us. IAF, Tab 3 at 15-27.
¶12         For the first time on review, the appellant raises a claim of retaliation for
      whistleblowing and alleges that he has filed a complaint with the Office of
      Special Counsel. 5 PFR File, Tab 1 at 1. We decline to address his claim further
      though because he did not raise this argument below and has not explained his
      failure to do so. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980) (observing that, generally, 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).
¶13         The administrative judge stated the general rule that the appellant’s
      discrimination and retaliation claims could not confer jurisdiction on the Board
      when it does not otherwise exist. ID at 6; see Wren v. Department of the Army,
      2 M.S.P.R. 1, 2 (1980) (stating that prohibited personnel practices under 5 U.S.C.
      § 2302(b) are not an independent source of Board jurisdiction), aff’d, 681 F.2d
      867, 871-73 (D.C. Cir. 1982). Yet, in the context of an employment practices
      appeal, this rule does not apply.        Richardson, 78 M.S.P.R. at 62.         A basic
      requirement under 5 C.F.R. § 300.103(c) is that employment practices may not
      discriminate based on nonmerit factors. Further, an exception to the general rule
      that the Board lacks jurisdiction over nonselections is when an appellant claims
      that a nonselection was made in retaliation for whistleblowing or certain

      5
        Although the administrative judge made a finding regarding a potential retaliation
      claim, we find no evidence in the record that the appellant actually raised a retaliation
      claim below. ID at 6.
                                                                                            8

      protected activity.     IAF, Tab 2 at 3.         However, the administrative judge’s
      overbroad statement did not prejudice the appellant’s substantive rights and, thus,
      does not provide a basis for disturbing the initial decision.             See Panter v.
      Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an
      adjudicatory error that is not prejudicial to a party’s substantive rights provides
      no basis for reversal of an initial decision).
¶14         Accordingly, we find that the administrative judge properly dismissed this
      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.
               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 want to request review of the Board’s decision concerning your
      claims     of   prohibited   personnel   practices   under   5   U.S.C.    § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited perso nnel practices, you
      may request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 60 days after the date of this
      order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
      to file, be very careful to file on time. You may choose to request review of the
      Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
      court of appeals of competent jurisdiction, but not both. Once you choose to seek
                                                                                  9

review in one court of appeals, you may be precluded from seeking review in any
other court.
      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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
