John Woodmaska v. Department of Energy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN WOODMASKA, DOCKET NUMBER
Appellant, DC-3443-16-0372-I-1
v.
DEPARTMENT OF ENERGY, DATE: September 28, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
John Woodmaska, Kearny, New Jersey, pro se.
Saul Ramos, Albuquerque, New Mexico, 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 nonselection 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 regulation or the erroneous application of the law to
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 appellant filed an appeal challenging the agency’s failure to hire him
for a Personnel Security Specialist position. Initial Appeal File (IAF), Tab 1
at 2‑3, 8, 10-11. The appellant alleged that the agency used an ineffective
method for communicating the tentative job offer and that the 2-day time limit for
responding to the offer was unreasonable. Id. at 3. Specifically, he argued that
the agency sent a letter to his personal email address tentatively offering him the
position, but the agency made no effort to confirm that he received the offer by
contacting him at his work email address or by telephone, although the agency
had this information and the tentative job offer expired in 2 days. Id. The
appellant further alleged that he was unable to check his personal email at the
public library and respond to the offer before it expired because the library was
closed due to a snowstorm and he was precluded from accessing his personal
email at work. Id.¶3 The administrative judge issued a show cause order informing the appellant
that the Board generally lacks jurisdiction over an appeal of a nonselection. IAF,
Tab 4 at 2. The administrative judge advised the appellant that he had the burden
of proof on the jurisdictional issue and ordered him to file evidence and argument
3
to prove that his action was within the Board’s jurisdiction. Id. The appellant
did not respond to the order.
¶4 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial
Decision (ID) at 1. Specifically, the administrative judge found that the appellant
was not entitled to a hearing because he failed to make nonfrivolous allegations
that, if proven, could establish Board jurisdiction over the appeal. ID at 1 n.1.
The administrative judge further found that the appellant failed to allege any facts
that would bring the challenged action within the Board’s jurisdiction. ID at 4.
In reaching his decision, the administrative judge noted that the appellant did not
respond to the show cause order. ID at 3.
¶5 The appellant filed a petition for review reasserting the allegations he made
on appeal. Petition for Review (PFR) File, Tab 1 at 2. The appellant also alleges
that the agency may be committing a prohibited personnel practice by willfully
obstructing the right to compete for employment in violation of 5 U.S.C.
§ 2302(b)(4). PFR File, Tab 1 at 2. He alleges that the agency’s extension of an
offer of employment with an “artificially short” response time could result in an
abuse of the hiring process by potentially eliminating highly qualified candidates
to improve the chances of hiring a “favored or ‘connected’” candidate. Id.¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. 5 U.S.C. § 7701(a); Maddox v.
Merit Systems Protection Board, 759 F.2d 9‑10 (Fed. Cir. 1985). The appellant
has the burden of establishing the Board’s jurisdiction over his appeal. See
5 C.F.R. § 1201.56(a)(2).
¶7 It is well settled that the Board generally does not have jurisdiction to
review an agency’s decision not to select a particular applicant for a position.
Brown v. Office of Personnel Management, 91 M.S.P.R. 314, ¶ 7 (2002).
Exceptions to this rule exist for individual right of action appeals under the
Whistleblower Protection Act (WPA) and the Whistleblower Protection
4
Enhancement Act (WPEA) and for claims under the Veterans Employment
Opportunities Act of 1998 (VEOA) or the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C §§ 4301-4333)
(USERRA). See Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327,
¶ 5 (2007).
¶8 The appellant has not alleged that the agency retaliated against him for
whistleblowing activity in violation of the WPA or the WPEA. In addition, the
appellant is not a preference‑eligible veteran, and he has not alleged claims under
VEOA or USERRA. IAF, Tab 1 at 1, 3. Thus, the appellant has not shown that
he made a nonfrivolous allegation of jurisdiction over his nonselection appeal
under any of the three stated exceptions to the general rule. Moreover, absent an
otherwise appealable issue, the Board has no jurisdiction to consider the
appellant’s allegation that the agency’s time-limited, tentative job offer may have
been a prohibited personnel practice. 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) (holding that
5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction).
¶9 To the extent that the appellant is arguing that he was subjected to an
improper employment practice, we find that he failed to identify any employment
practice appealable under 5 C.F.R. part 300, subpart A, i.e., 5 C.F.R.
§§ 300.101‑.104(a). Under 5 C.F.R. § 300.104(a), “[a] candidate who believes
that an employment practice which was applied to him or her by the Office of
Personnel Management [OPM] violates a basic requirement in § 300.103 is
entitled to appeal to the Merit Systems Protection Board under the provisions of
its regulations.” Bush v. Office of Personnel Management, 315 F.3d 1358, 1360
(Fed. Cir. 2003). Pursuant to 5 C.F.R. § 300.101, “employment practices” are
defined as “the development and use of examinations, qualification standards,
tests, and other measurement instruments.” However, the mere filling of a
particular vacancy generally is not an “employment practice” within the meaning
5
of 5 C.F.R. § 300.101. See Carroll v. Equal Employment Opportunity
Commission, 6 M.S.P.R. 228, 230 (1981).
¶10 Here, the appellant has alleged that the agency, not OPM, used an
unreasonable method of communicating the tentative job offer and that the
limited response time was unfair. The appellant’s allegation does not fall within
the broadly construed definition of an employment practice appealable to the
Board under 5 C.F.R. § 300.104(a). See Carroll, 6 M.S.P.R. at 230-31 (finding
that the appellant had no Board appeal right because her nonselection was within
the agency’s control and did not concern an employment practice applied to her
by OPM). Accordingly, we affirm the administrative judge’s decision to dismiss
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:
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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
6
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 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
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.