Michael Beech v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL L. BEECH, SR, DOCKET NUMBER
Appellant, DA-3443-17-0420-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael L. Beech, Sr., Pleasanton, Texas, pro se.
Lawrence Lynch, Esquire, Joint Base San Antonio, Randolph Air Force
Base, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of Board jurisdiction his appeal claiming that the manner in
which the agency assessed his application, leading to his nonselection, was an
employment practice that violated a basic requirement of 5 C.F.R. § 300.103.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Generally, we grant petitions such as this one only in the following
circumstances: 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 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 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. 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. Except as expressly MODIFIED to
address the appellant’s claim that the agency failed to apply an Office of
Personnel Management (OPM) policy requiring a comprehensive evaluation of his
background during the selection process, we AFFIRM the initial decision.
BACKGROUND
¶2 On April 23, 2017, the appellant applied for a competitive service
GS-1750-11 Instructional Systems Specialist position with the agency, under
vacancy announcement 8Z-AFPC-1945278-796741-ASC. Initial Appeal File
(IAF), Tab 11 at 52-53, Tab 14 at 1. The position had qualifying educational
requirements set by OPM consisting of a degree that included or was
supplemented by 24 semester hours of specific coursework in at least 4 of 5 focus
areas. IAF, Tab 11 at 67, Tab 12 at 9.
¶3 The agency interviewed the appellant for the position on June 12, 2017.
IAF, Tab 1 at 5. The following day, the agency requested additional information
to verify the appellant’s eligibility. IAF, Tab 11 at 51. The agency had subject
matter experts on the position review the appellant’s educational qualifications.
3
Id. at 15-16. Each agreed that the appellant failed to meet the educational
requirements set by OPM, as he had only completed 21 semester hours in 3 of the
5 focus areas. Id. at 15-16, 25-27. Accordingly, the agency deemed the appellant
ineligible for the position and did not consider his application further. Id. at 14.
¶4 On July 18, 2017, the appellant filed an appeal with the Board and
requested a hearing, alleging that the manner in which the agency assessed his
application, leading to his nonselection, was an employment practice that violated
a basic requirement of 5 C.F.R. § 300.103. IAF, Tab 1 at 3, 5, Tab 4 at 4. The
appellant also claimed that he met the educational requirements for the position.
IAF, Tab 1 at 5, Tab 14 at 1-2. He further alleged that the agency failed to apply
an OPM policy relating to 5 U.S.C. § 3308, because it did not conduct a
comprehensive evaluation of his background during the selection process. IAF,
Tab 1 at 5-7; Tab 4 at 4; Tab 14 at 2.
¶5 On September 8, 2017, the administrative judge issued an initial decision on
the written record, finding that the appellant failed to meet his burden of
establishing Board jurisdiction over his appeal. IAF, Tab 15, Initial Decision
(ID) at 1-8. Specifically, the administrative judge held that the appeal did not
concern an employment practice that OPM is involved in administering. ID
at 3-8. The appellant then filed a petition for review largely reiterating his
arguments before the administrative judge. Petition for Review (PFR) File,
Tab 1. The agency has responded in opposition to the petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The standard for an employment practices appeal to be within the Board’s
jurisdiction.
¶6 The term “employment practice” is defined by regulation as practices that
affect the recruitment, measurement, ranking, and selection of individuals for
initial appointment and competitive promotion in the competitive service.
4
5 C.F.R. § 300.101. Employment practices include the development and use of
examinations, qualification standards, tests, measurement instruments, and
practices other than merit-based tests impacting selection. Holse v. Department
of Agriculture, 97 M.S.P.R. 624, ¶ 6 (2004); 5 C.F.R. § 300.101.
¶7 Pursuant to 5 C.F.R. § 300.103, each employment practice of the Federal
Government generally must adhere to the following basic requirements. First, an
employment practice must be based on a job analysis identifying the basic duties
of the position; the knowledge, skills, and abilities necessary to perform those
duties; and the factors that are important in evaluating candidates for the position.
5 C.F.R. § 300.103(a). Second, a rational relationship must exist between
performance in the position and the employment practice used to fill the position
and such relationship must be demonstrated by showing that the employment
practice was professionally developed. 5 C.F.R. § 300.103(b). Third, an
employment practice must not discriminate on the basis of any prohibited factor
listed in 5 C.F.R. § 300.103(c). A candidate for employment who believes that an
employment practice applied to him by OPM violates an aforementioned basic
requirement may file an appeal with the Board. 5 C.F.R. § 300.104(a).
¶8 To establish Board jurisdiction over an employment practices appeal, an
appellant’s appeal must concern an employment practice that OPM is involve d in
administering and an appellant must make a nonfrivolous allegation that the
employment practice violated one of the basic requirements set forth in 5 C.F.R.
§ 300.103. Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 6
(2010). OPM need not be immediately involved in the practice in question, as an
agency’s misapplication of a valid OPM requirement may constitute an
appealable employment practice, assuming the other jurisdictional elements are
met. See Scott v. Department of Justice, 105 M.S.P.R. 482, ¶¶ 10, 12 (2007)
(noting that OPM can be sufficiently involved in an agency’s selection process in
an employment practices appeal when OPM formulated the qualification standard
at issue).
5
The appellant failed to meet his burden of establishing Board jurisdiction over his
employment practices appeal.
¶9 As the administrative judge correctly held in the initial decision, the
appellant’s challenge of the agency’s decision that he did not meet the
educational requirements for the Instructional Systems Specialist position is not
an employment practices appeal within the Board’s jurisdiction. ID at 6 -8; IAF,
Tab 1 at 5, Tab 14 at 1-2. While the term “employment practice” is to be
construed broadly, it does not encompass the agency’s rating and handling of an
individual application. Richardson v. Department of Defense, 78 M.S.P.R. 58, 61
(1998) (holding that the Board lacked jurisdiction over an employment practic es
appeal when the appellant merely contested the agency’s rating and handling of
her individual application); see Sutton v. Department of Veterans Affairs, 671 F.
App’x 781, 783 (Fed. Cir. 2016) (Table) (finding that the appellant’s employment
practices appeal was not within the Board’s jurisdiction because the appellant
challenged the individual determination that his transcript was insufficient to
show that he met the educational requirements). 2
¶10 Relatedly, as determined by the administrative judge in the initial decision,
the appellant does not challenge the validity or applicability of the educational
requirements for the position at issue. ID at 6-7. In an employment practices
appeal, misapplication of a valid OPM requirement by an agency does not mean
that an agency inaccurately evaluated a candidate using a valid OPM requirement;
instead, it means that the very application of the requirement to the candidate
violated 5 C.F.R. § 300.103. See Sauser, 113 M.S.P.R. 403, ¶¶ 8-10 (finding that
an appellant established jurisdiction over an employment practices appeal when
alleging that an agency improperly applied OPM qualification standards because
2
The Board may rely on unpublished U.S. Court of Appeals for the Federal Circuit
decisions if, as here, it finds the reasoning persuasive. Vores v. Department of the
Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
6
he alleged that the standards were not rationally related to performance in the
position at issue). The appellant makes no such claim here.
¶11 The appellant did however allege in his appeal and on review that the
agency failed to apply an OPM policy relating to 5 U.S.C. § 3308 because it did
not conduct a comprehensive evaluation of his background during the selection
process. 3 IAF, Tab 1 at 5-7; Tab 4 at 4; Tab 14 at 2; PFR File, Tab 1 at 4-5.
While noting this issue in both an order and in the initial decision, the
administrative judge did not reach a conclusion on the matter. ID at 4; IAF,
Tab 14 at 2. Initial decisions must contain findings of fact and conclusions of
law for the material issues presented in the record, along with the corresponding
reasons or bases. 5 C.F.R. § 1201.111(b)(1)-(2); see Spithaler v. Office of
Personnel Management, 1 M.S.P.R. 587, 589 (1980). We modify the initial
decision to include analysis and conclusion on this issue.
¶12 The appellant continuously references the OPM policy that states that in
rare occasions, agencies must conduct a more comprehensive evaluation of an
applicant who does not meet the required educational requirements, but is
demonstrably well qualified for the position due to a combination of education
and experience. IAF, Tab 1 at 5-7; Tab 4 at 4; Tab 14 at 2; PFR File, Tab 1
at 4-5; see OPM, Classification & Qualifications, General Schedule Qualification
Policies, Educational and Training Provisions or Requirements, Interpreting
Minimum Educational Requirements, https://www.opm.gov/policy-data-
oversight/classification-qualifications/general-schedule-qualification-policies/
(last visited February 28, 2023). In this case, the appellant claims that he is
3
In accordance with 5 U.S.C. § 3308, agencies may not prescribe minimal educational
requirements for competitive-service positions unless OPM decides that the duties are
of a scientific, technical, or professional position that cannot be performed by an
individual who does not have a prescribed minimum education. OPM determined that
the competitive service GS-1750-11 Instructional Systems Specialist position in this
appeal falls under the exception of 5 U.S.C. § 3308 and established educational
requirements as a result. IAF, Tab 11 at 67. The appellant does not challenge the
validity or applicability of these educational requirements. ID at 7.
7
demonstrably well qualified and the agency did not conduct a comprehensive
evaluation of his background. IAF, Tab 1 at 5-7; Tab 4 at 4; Tab 14 at 2; PFR
File, Tab 1 at 5-6.
¶13 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 v. Merit Systems Protection Board, 133 F.3d 885, 887 (Fed.
Cir. 1998); see Banks v. Department of Agriculture, 59 M.S.P.R. 157, 159-60
(1993) (finding that failure to consider the appellant’s relevant education and
experience and other alleged irregularities in the selection process do es not
constitute an “employment practice”), aff’d, 26 F.3d 140 (Fed. Cir. 1994) (Table).
Here, the appellant claimed that the agency did not complete a comprehensive
evaluation of his background, but has not alleged or shown that the supposed
failure to do so was pursuant to or part of any rule or practice by the agency. We
therefore find that the appellant’s allegation, even if true, does not show that the
agency’s actions constituted an employment practice. See Manno v. Department
of Justice, 85 M.S.P.R. 696, ¶ 7 (2000) (finding that because the contested agency
action was not made pursuant to or as part of a rule or practice, it did not
constitute an employment practice). 4
¶14 Because the record contains undisputed evidence on the jurisdictional issue
and the appellant failed to make a nonfrivolous allegation of jurisdiction, the
administrative judge correctly dismissed this appeal without holding a hear ing.
See O’Neal v. U.S. Postal Service, 39 M.S.P.R. 645, 649 (dismissing an appeal
without a hearing when the appellant failed to raise a nonfrivolous allegation of
jurisdiction and the jurisdictional issue could be resolved on written
submissions), aff’d, 887 F.2d 1095 (Fed. Cir. 1989) (Table).
4
Even if the appellant did adequately allege that the agency’s failure to apply this OPM
policy to his individual circumstance is an employment practice, he still does not
establish Board jurisdiction over his claim, as he did not make a nonfrivolous allegation
that the employment practice at issue violated one of the basic requirements set forth in
5 C.F.R. § 300.103. Sauser, 113 M.S.P.R. 403, ¶ 6.
8
¶15 We have considered the appellant’s arguments on review, many mirroring
the ones he set forth before the administrative judge, and we discern no basis to
disturb the administrative judge’s conclusion that the appellant failed to establish
Board jurisdiction over his employment practices appeal. PFR File, Tab 1 at 4-7.
See Hsieh v. Defense Nuclear Agency, 51 M.S.P.R. 521, 524-25 (1991) (holding
that mere reargument of the same issues does not constitute a basis to grant a
petition for review), aff’d, 979 F.2d 217 (Fed. Cir. 1992) (Table).
¶16 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 5
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
If you are interested in securing pro bono representation for an 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
10
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court a t the
following address:
U.S. Court of Appeals
for the Federal Circuit
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscour ts.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, 10, and 11.
If you are interested in securing pro bono representation for an 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.