Sambrano v. Merit Systems Protection Board ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3132
ATANACIO G. SAMBRANO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Atanacio G. Sambrano, of Lindenhurst, Illinois, pro se.
Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Sara B. Rearden, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3132
ATANACIO G. SAMBRANO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: September 6, 2007
__________________________
Before NEWMAN and MOORE, Circuit Judges, and FARNAN,* District Judge.
NEWMAN, Circuit Judge.
Mr. Atanacio G. Sambrano appeals the decision of the Merit Systems Protection
Board (Docket No. CH3443060625-I-1) dismissing his appeal for lack of jurisdiction.
Because failure to promote to a higher grade or select for a vacancy at a higher grade is
_______________
* Hon. Joseph J. Farnan, Jr., District Judge, United States District Court for the
District of Delaware, sitting by designation.
not an appealable action, the Board had no authority to give independent consideration to
his claims of discrimination based on race, national origin, or age. The dismissal is
affirmed.
BACKGROUND
Mr. Sambrano is a licensed Professional Engineer, employed as Civil Engineer,
grade GS-11, with the Naval Facilities Engineering Command in Great Lakes, Illinois. In
February 2006 he filed a complaint with the Office of Special Counsel (OSC), charging that
the Navy had engaged in prohibited personnel practices including age, race, and national
origin discrimination, by denying his repeated requests for promotion to a GS-12 position,
while promoting other engineers who were younger and less qualified.
On March 8, 2006 the OSC informed Mr. Sambrano that he had not supported the
charge of violation of 5 U.S.C. '2302(b)(6) (prohibition against granting "any preference or
advantage not authorized by law"), and that any violation of 5 U.S.C. '2302(b)(9)
(prohibition against taking or failure to take any personnel action against an employee for
filing an EEO complaint) should be filed with the EEOC. The OSC concluded its
investigation, and denied reconsideration. Mr. Sambrano appealed to the MSPB, raising
issues of prohibited personnel practices under 5 C.F.R. '1201.151 and '1201.153, violation
of the Civil Rights Act of 1964, violation of the Age Discrimination in Employment Act of
1967, and violation of the Whistleblower Protection Act.
Mr. Sambrano argued that the Navy's repeated denial of a promotion to GS-12
despite more than twenty years of service as a licensed Professional Engineer, and the
Navy's promotion of less senior and unlicensed engineers to grade GS-12, are prima facie
prohibited personnel practices. He did not press the whistleblower aspect. The MSPB
2007-3132 2
administrative judge dismissed the appeal on the ground that failure to promote is not an
appealable action, and that discrimination claims are not appealable to the Board unless
they accompany an otherwise appealable action. The full Board declined review, and this
appeal followed.
DISCUSSION
The issue of the Board's jurisdiction is a question of law, and receives plenary
review. King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996). See 5 C.F.R. '1201.56(a)(2)
(the petitioner must establish the Board's jurisdiction).
The Board's jurisdiction is limited to actions designated as appealable to the Board
"under any law, rule, or regulation." 5 U.S.C. '7701(a). Mr. Sambrano argues that the
Navy's actions constitute prohibited personnel practices under 5 C.F.R. '1201.151 and
'1201.153, and that the Navy acted in violation of the Civil Rights and Age Discrimination
statutes. The Navy responds that the only employment practice at issue is the failure to
promote, which is not an appealable action. A non-promotion or non-selection, even if
allegedly based on a prohibited personnel practice under 5 U.S.C. '2302(b) (listing
categories of prohibited personnel practices in federal employment) is generally not
appealable to the Board. See Cruz v. Dep't of the Navy, 934 F.2d 1240, 1245 (Fed. Cir.
1991) (en banc) (the asserted violation of 5 U.S.C. '2302(b) is not an independent source
of Board jurisdiction); Prewitt v. MSPB, 133 F.3d 885, 886 (Fed. Cir. 1998) ("An agency's
failure to select an applicant for a vacant position is generally not appealable to the
Board.").
Mr. Sambrano argues that since he is entitled to the grade increase by qualification,
experience, and tenure as a licensed Professional Engineer who has served the federal
2007-3132 3
government for more than twenty years, the Navy and OPM must demonstrate that its rules
and regulations authorize denial of the increase. He points out that the Board has authority
to review OPM rules and regulations, see 5 U.S.C. '1204(f)(1), and that the Board
committed reversible error by failing to consider his evidence of discrimination. However,
absent an appealable employment action, the Board has no authority to review such
evidence. If discrimination is charged, the MSPB correctly stated that the proper forum is
the EEOC. Although claims for discrimination because of age and for civil rights violation
"should be construed not narrowly and technically, but broadly and liberally," Hill v. Dep't of
Air Force, 796 F.2d 1469, 1472 (Fed. Cir. 1986), unless the employment action is
appealable, the asserted reasons for the action are not within the Board's review authority.
Mr. Sambrano also complains of the Navy's lack of "standard procedure as to how
selecting officials choose to notify applicants of job interviews." Lack of standard procedure
in the selection process is not an "employment practice" within the meaning of 5 C.F.R.
'300.104(a). See Prewitt, 133 F.3d at 887 (holding that irregularity such as racial
misidentification in the selection process is not "an application of a specific rule, provision,
or policy by the agency"). Again, since failure to select or promote is not an appealable
action, the Board cannot review the reasons for such failure.
Each party shall bear its costs.
2007-3132 4