Purifoy v. Merit Systems Protection Board , 621 F. App'x 673 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY E. PURIFOY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3172
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-12-0204-B-1.
______________________
Decided: November 6, 2015
______________________
MARY E. PURIFOY, Cantonment, FL, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before PROST, Chief Judge, WALLACH and STOLL, Cir-
cuit Judges.
2 PURIFOY v. MSPB
PER CURIAM.
Ms. Mary Purifoy appeals the final decision of the
Merit Systems Protection Board (“Board”) dismissing her
appeal for lack of jurisdiction. Because Ms. Purifoy has
failed to satisfy her burden of proving that the Board had
jurisdiction over her appeal, we affirm.
BACKGROUND
Ms. Purifoy, a GS-7 Management Assistant with the
Department of the Navy (“Agency”), applied for a GS-9
Management Analyst position in July 2009. Ms. Purifoy
was not referred to the selecting official for consideration,
and another candidate was eventually selected for the
position. In November 2009, the Agency notified
Ms. Purifoy that her non-referral was due to an adminis-
trative error and offered her priority consideration for the
next suitable position. Ms. Purifoy then filed an equal
employment opportunity (“EEO”) complaint with the
Agency, alleging discrimination on the basis of race and
sex when the Agency allegedly manipulated the qualifica-
tion criteria for the vacancy to avoid referring her applica-
tion to the selecting official. The Agency investigated
Ms. Purifoy’s complaint and issued a final agency decision
finding no discrimination.
Ms. Purifoy then filed an employment practice appeal
with the Board, challenging the Agency’s recruitment
process for the Management Analyst position. Ms. Puri-
foy alleged that the Agency had violated a “basic require-
ment” for employment practices of the federal
government, as prescribed in 5 C.F.R. § 300.103. Specifi-
cally, she alleged that the Agency failed to use “profes-
sionally-developed job analyses” to identify important
factors for evaluating candidates and further failed to
maintain a merit promotion plan in selecting candidates.
See 5 C.F.R. §§ 300.103(b), 335.102. She also alleged that
the Agency had changed the qualification criteria in the
PURIFOY v. MSPB 3
position’s vacancy announcement to exclude her from
consideration.
The Board ultimately dismissed Ms. Purifoy’s em-
ployment practice appeal for lack of jurisdiction. The
Board noted that it has jurisdiction “over an employment
practice appeal pursuant to 5 C.F.R. § 300.104(a) when
two conditions are met: (1) the appeal concerns an em-
ployment practice that the Office of Personnel Manage-
ment (OPM) is involved in administering; and (2) the
employment practice must be alleged to have violated one
of the ‘basic requirements’ for employment practices set
forth in 5 C.F.R. § 300.103.” J.A. 9. The Board deter-
mined that Ms. Purifoy’s claims constituted a challenge to
an individual selection process for a particular agency
position and thus did not raise an employment practice
claim appealable to the Board. On her allegation that the
Agency failed to maintain a merit promotion plan and
failed to use professionally-developed job analyses in
violation of 5 C.F.R. § 300.103, the Board found that
Ms. Purifoy did not allege that OPM was involved in
administering the alleged practices at issue. The Board
thus denied her petition for review and dismissed the
appeal for lack of jurisdiction.
Ms. Purifoy appealed to this court, and we have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction to hear an appeal
is a question of law reviewed de novo. Whiteman v. Dep’t
of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012).
Ms. Purifoy first argues that the Board had jurisdic-
tion to hear her appeal because the Agency’s “employment
practice” violated § 300.103(a) in “developing key words”
for searching candidate resumes that “were not based
upon a professionally developed job analysis.” Pet. Br. 8.
As the government notes, however, Ms. Purifoy “does not
4 PURIFOY v. MSPB
appear to allege that the use of key words led to her
application not being processed correctly.” Gov’t Br. 16.
We agree. The record reflects that Ms. Purifoy’s non-
referral was due to an error in the Agency’s application
processing system. It was not as a result of an “employ-
ment practice” within the meaning of § 300.104. We have
repeatedly held that, for the Board to have jurisdiction, it
is “necessary that the challenged employment practice
have been applied to the applicant as the basis for the
adverse hiring decision.” Dow v. Gen. Servs. Admin., 590
F.3d 1338, 1342 (Fed. Cir. 2010). As such, we agree that
the Board lacked jurisdiction over Ms. Purifoy’s appeal.
Ms. Purifoy also alleges that the Board had jurisdic-
tion over her claim that the “agency’s failure to maintain
an active Merit Promotion Plan and develop selection
criteria based on a professionally developed job analysis”
violated § 300.103(b). Pet. Br. 8. Ms. Purifoy appears to
assert that the Board erred in concluding that OPM must
be involved in administering the employment practice for
the Board to have jurisdiction. Pet. Br. 7-8. (citing
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 888
(Fed. Cir. 1998)). Ms. Purifoy argues that “an agency’s
misapplication of a valid OPM requirement may consti-
tute an employment practice” and that “OPM need not be
immediately involved in the practice in question.”
Pet. Br. 9 (emphasis omitted).
Ms. Purifoy’s argument, however, rests on a misun-
derstanding of Prewitt. In Prewitt, we held that “OPM’s
involvement in an agency’s selection process may be
sufficient to characterize a non-selection action by that
agency as a practice applied by OPM” only where OPM’s
involvement in the selection process is “significant.”
Prewitt, 133 F.3d at 888. As the Board observed, howev-
er, Ms. Purifoy “did not allege that OPM was involved in
administering the alleged practices at issue or that the
agency’s alleged wrongful actions were based upon any
regulation or standard promulgated by OPM.” J.A. 10.
PURIFOY v. MSPB 5
That is, Ms. Purifoy has not satisfied her burden of estab-
lishing Board jurisdiction with respect to the employment
practices because she “has not shown that OPM was
involved in the administration of [the] practices.” Prewitt,
133 F.3d at 887–88; see also Dowd v. Office of Pers.
Mgmt., 745 F.2d 650, 651 (Fed. Cir. 1984) (“[S]ince OPM
played no part in the [employment practice applied] to
petitioner by the [agency], OPM had not applied any
employment practice to petitioner.” (emphasis omitted)).
CONCLUSION
We affirm the Board’s decision dismissing
Ms. Purifoy’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.