Alfous Glenn Ferrier, Jr. v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALFOUS GLENN FERRIER, JR., DOCKET NUMBER
Appellant, AT-3443-15-0614-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 5, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Alfous Glenn Ferrier, Jr., Jacksonville, Florida, pro se.
Rebecca Gervasi, Fort Sam Houston, Texas, 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
regulation or the erroneous application of the law to the facts of the case; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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, a Quality Assurance Specialist for the Defense Contract
Management Agency in St. Augustine, Florida, appealed his nonselection for
multiple Quality Assurance Specialist positions in other locations, alleging that
his nonselections were the result of favoritism. Initial Appeal File (IAF), Tab 1.
The administrative judge informed the appellant that the Board generally does not
have jurisdiction over nonselection claims, explained the limited exceptions to
this general rule, and ordered the appellant to file evidence and argument
establishing jurisdiction over this appeal. IAF, Tab 2 at 2. The appellant did not
respond to this order, and the administrative judge dismissed the appeal, without
holding a hearing, for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID).
¶3 The appellant has filed a petition for review arguing that the agency
committed a prohibited personnel practice by not selecting him for nine positions
over a 2-year period. Petition for Review (PFR) File, Tab 1. The agency has
filed a response in opposition to the petition. PFR File, Tab 3.
¶4 As found by the administrative judge, the Board does not have jurisdiction
to hear an appeal of a nonselection. ID at 2; see Mello v. Department of Energy,
20 M.S.P.R. 45, 47 (1984). The appellant claims that his nonselections are the
result of a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(9).
PFR File, Tab 1 at 3. Absent an otherwise appealable action, the appellant’s
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claim of a prohibited personnel practice does not provide an independent basis for
finding Board jurisdiction. Davis v. Department of Defense, 103 M.S.P.R. 516,
¶ 11 (2006).
¶5 The appellant states that he has filed a prohibited personnel practices
complaint with the Office of Special Counsel (OSC). PFR File, Tab 1 at 3. The
appellant alleges he was told by an OSC employee that his prohibited personnel
practices complaint would be difficult to prove. IAF, Tab 1 at 5. If the Special
Counsel determines that the Board should take an action to discipline an
employee alleged to have committed a prohibited personnel practice, the Special
Counsel must file a written complaint with the Board. 5 C.F.R. § 1201.123. In
his petition for review, the appellant cites to decisions issued under the Board’s
original jurisdiction as the result of an OSC complaint. PFR File, Tab 1 at 3-4.
An employee, like the appellant, may seek corrective action by filing an
individual right of action appeal under 5 U.S.C. § 1221 for a prohibited personnel
practice described in 5 U.S.C. § 2302(b)(8) after exhausting his remedies with
OSC. Clemente v. Department of Homeland Security, 101 M.S.P.R. 519, ¶ 9
(2006). The appellant is alleging that the agency violated 5 U.S.C. § 2302(b)(6),
PFR File, Tab 1 at 3, which is not a basis for an individual right of action appeal.
Based on the foregoing, we find 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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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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
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.