James H. Montgomery v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES H. MONTGOMERY, DOCKET NUMBER
Appellant, DC-3443-16-0225-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 22, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James H. Montgomery, Baltimore, Maryland, pro se.
Daniel Piccaluga, Washington, D.C., 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 the 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 interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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).
¶2 The agency advertised the GS-15 position of Supervisory Equal
Employment Opportunity Specialist with the Federal Emergency Management
Agency under two vacancy announcements: one under delegated examining unit
procedures (FEMA-16-LDC-79823-DE) and another under merit promotion
procedures (FEMA-16-LDC-79823-MP). Initial Appeal File (IAF), Tabs 1, 6‑7.
The appellant applied under the delegated examining unit procedures for vacancy
announcement number FEMA-16-LDC-79823-DE.
¶3 The appellant, a nonpreference eligible, thereafter filed an appeal alleging
that the agency committed harmful procedural error when it did not consider his
application and failed to state in the vacancy announcement that it would consider
veterans only. IAF, Tab 1. The administrative judge did not hold a hearing.
Based on the written record, he found that the Board does not have jurisdiction
over nonselections, and determined that claims of unlawful conduct in the
selection process must be brought in other forums. IAF, Tab 12, Initial Decision
(ID) at 3. He also found that the Board does not have jurisdiction over the
appellant’s claim as an employment practice because he had not presented any
facts or evidence to establish that the agency violated one of the basic
3
requirements for employment practice appeals set forth in 5 C.F.R. § 300.103. 2
ID at 2‑4.
¶4 In his petition for review, the appellant contends that the administrative
judge mistakenly treated this appeal as a nonselection rather than as a failure to
consider his application. He contends that the agency’s failure to consider his
application under the delegated examining unit procedures is a violation
of 5 U.S.C. § 2302(b)(4) and (b)(6).
¶5 On review, the appellant raises for the first time the argument that the
agency’s action violated sections 2302(b)(4) and (b)(6). The Board generally 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. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such showing.
¶6 In any event, the Board lacks jurisdiction over the appellant’s prohibited
personnel practices claim. 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). The
administrative judge properly found that the appellant failed to identify an agency
action over which the Board has been given jurisdiction, whether it is
characterized as a nonselection, an employment practice, or a failure to consider
2
The term “employment practices” includes the development and use of examinations,
qualification standards, tests, and other measurement instruments. 5 C.F.R. § 300.101.
Each employment practice of the Federal Government generally, and of individual
agencies, shall be based on a job analysis to identify: (1) the basic duties and
responsibilities; (2) the knowledge, skills, and abilities required to perform the duties
and responsibilities; and (3) the factors that are important in evaluating candidates. The
job analysis may cover a single position or group of positions, or an occupation or
group of occupations, having common characteristics. 5 C.F.R. § 300.103. The
misapplication of a valid Office of Personnel Management requirement under 5 C.F.R.
part 300 would constitute an employment practice.
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an application of a nonveteran. 3 Under the circumstances of this case, the
appellant failed to establish Board jurisdiction over his nonselection. Miller v.
Department of Homeland Security, 111 M.S.P.R. 325, ¶ 10 (2009), aff’d,
361 F. App’x 134 (Fed. Cir. 2010). Also, the appellant failed to establish Board
jurisdiction over this appeal as an employment practice claim. See, e.g., Sauser v.
Department of Veterans Affairs, 113 M.S.P.R. 403, ¶¶ 6–7 (2010) (describing the
Board’s jurisdictional analysis under 5 C.F.R. § 300.104(a)). Thus, the
appellant’s claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(4)
and (b)(6) 4 are not themselves independent sources of Board jurisdiction. 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). Accordingly, we conclude that the administrative judge
properly dismissed the 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. You must submit your request to the
court at the following address:
3
The agency contends that it did consider the appellant’s application under FEMA-16-
LDC-79823-DE. IAF, Tab 11 at 18 n.1. The parties’ factual dispute, however, is
irrelevant to the issue of whether the Board has jurisdiction over this appeal. Under the
Veterans Employment Opportunities Act of 1998, the Board may have jurisdiction to
consider an agency’s failure to consider a preference eligible for a position when the
agency accepted applications from outside its workforce. 5 U.S.C.A. § 3304(f)(1).
However, the appellant admits that he is not a preference eligible.
4
5 U.S.C. § 2302(b)(4) prohibits deceiving or willfully obstructing any person with
respect to such person’s right to compete for employment. 5 U.S.C. § 2302(b)(6)
prohibits an employee from “grant[ing] any preference or advantage not authorized by
law, rule, or regulation to any employee or applicant for employment . . . for the
purpose of improving or injuring the prospects of any particular person
for employment.”
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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 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
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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.