Delmerico v. Dep't of the Navy

Docket NumberAT-3443-17-0281-I-1
Decision Date30 May 2023
CourtMerit Systems Protection Board


Susan Elizabeth Delmerico, Jacksonville, Florida, pro se.

Thomas J. Tangi, Jacksonville, Florida, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member.


¶1 The appellant has filed a petition for review of the initial decision, which dismissed her nonselection appeal for lack of jurisdiction. 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 by this Final Order to supplement the administrative judge's analysis to explain why the Board lacks jurisdiction over this appeal based on regulations of the Office of Personnel Management (OPM) concerning suitability actions and employment practices, we AFFIRM the initial decision.


¶2 On October 17, 2016, the agency posted a vacancy announcement for the position of Health System Specialist, GS-0671-09. Initial Appeal File (IAF), Tab 5 at 8-12. The vacancy announcement noted that the position would be filled using the agency's expedited hiring authority for designated healthcare professions. Id. at 8. Approximately 68 applicants were certified as qualified for the position including the appellant. Id. at 14-16. The candidate selected for the position was purportedly a veteran with a compensable, service-connected disability of 30% or more. Id. at 14, 22, 34. The appellant does not have a veterans' preference. IAF, Tab 1 at 1, Tab 5 at 15.

¶3 Following her nonselection, the appellant filed this appeal with the Board. IAF, Tab 1. Among other things, she alleged that she was denied an interview or consideration for the position and that the agency wrongfully accounted for the candidates' veterans' preference in filling the vacancy. Id. at 5.

¶4 Without holding the appellant's requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction because the appellant failed to make a nonfrivolous allegation[2] of any matter appealable to the Board. IAF, Tab 6, Initial Decision (ID) at 1-3. The administrative judge explained that nonselection decisions are generally not actions that can be appealed to the Board. ID at 2-3. She further found that the appellant's allegations of procedural error in the selection process were not a source of jurisdiction and that the appellant failed to make a nonfrivolous allegation under OPM's employment practices regulations because any employment practice at issue was not administered by OPM. ID at 3. The appellant has filed a petition for review, the agency has filed a response, and the appellant has filed a reply. Petition for Review (PFR) File, Tabs 1, 3-4.


¶5 Generally, a nonselection is not the type of action that can be directly appealed to the Board. Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 6 (2012); see 5 U.S.C. §§ 7512, 7513(d). However, as the administrative judge correctly informed the appellant, there are exceptions to this general rule. IAF Tab 2 at 2-5. One exception is when an employment practice that was applied to an employee by OPM violates a basic requirement set forth at 5 C.F.R. § 300.103. 5 C.F.R. § 300.104(a). Further, OPM's regulations provide that a suitability action, as defined at 5 C.F.R. § 731.203, may also be appealed to the Board pursuant to 5 C.F.R. § 731.501(a).[3] ¶6 The appellant argues on review that the agency's expedited hiring authority requires it to apply merit principles to assist in determining the best qualified candidate and that the agency failed in this regard. PFR File, Tab 1 at 5-6. She seems to contend that, if the agency had appropriately screened its candidates, several of its interviewees would never have been interviewed for the position. Id. at 6-7. She states that the hiring manager told her that she was the most qualified candidate for the position and that he further said that the human resources office instructed that only veterans were to be interviewed for the position, despite the certification of a number of nonveterans. IAF, Tab 4 at 9-10; PFR File, Tab 1 at 7. The appellant argues that the agency's decision to interview only veterans constituted a cancellation of every nonveteran's eligibility for employment consideration, which she asserts is a suitability action. PFR File, Tab 4 at 4. She also alleges that the agency's actions violated the basic requirements set forth at 5 C.F.R. § 300.103. Id.

The appellant has failed to nonfrivolously allege that OPM's suitability regulations are a source of jurisdiction.

¶7 Regulations promulgated by OPM in 2008 state that a "suitability action," as defined in those regulations, may be appealed to the Board. 5 C.F.R. § 731.501(a). Suitability determinations examine whether "a person's character or conduct . . . may have an impact on the integrity or efficiency of the service." 5 C.F.R. § 731.101. If an individual is deemed unsuitable for service based on one or more of the factors enumerated in 5 C.F.R. § 731.202(b), the acting agency may take a suitability action, which is defined as a removal, debarment, cancellation of eligibility, or cancellation of reinstatement eligibility. 5 C.F.R. § 731.203. However, "[a] non-selection, or cancellation of eligibility for a specific position . . . is not a suitability action even if it is based on reasons set forth in § 731.202." 5 C.F.R. § 731.203(b). ¶8 Assuming arguendo that the agency directed that only veterans be interviewed for the position at issue in this case, we find that this does not constitute a "cancellation of eligibility," as that term is used at 5 C.F.R. § 731.203(a), or any other suitability action. Moreover, even if it did constitute a cancellation of eligibility, it would only have been a cancellation of eligibility for a specific position, which is excluded from the definition of a suitability action. 5 C.F.R. § 731.203(b). Accordingly, we find that the appellant failed to nonfrivolously allege that the agency took a suitability action against her. Therefore, we conclude that 5 C.F.R. § 731.501(a) is not a source of jurisdiction here.

The appellant has failed to nonfrivolously allege that her claim concerns an employment practice that OPM was involved in administering.

¶9 The Board has jurisdiction over an employment practices appeal when (1) an appellant's claim concerns an "employment practice" that OPM is involved in administering and (2) she has nonfrivolously alleged that the employment practice violated one of the "basic requirements" set forth in 5 C.F.R. § 300.103. Burroughs v. Department of the Army, 116 M.S.P.R. 292, ¶ 15 (2011). An "employment practice" is defined, in relevant part, as those practices "that affect the recruitment, measurement, ranking, and selection of individuals for initial appointment and competitive promotion in the competitive service," and includes "the development and use of examinations, qualification standards, tests, and other measurement instruments." 5 C.F.R. § 300.101. However, an individual agency action or decision that is not a rule or practice of some kind does not qualify as an employment practice, but an agency's misapplication of a valid OPM requirement may constitute an employment practice. Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 7 (2010).

¶10 The administrative judge found that the appellant failed to nonfrivolously allege that any employment practice at issue in this appeal was administered by OPM.[4] ID at 3. On review, the appellant has failed to explain why we should reverse this finding, PFR File, Tabs 1, 4, and we see no reason to do so. Accordingly, assuming without finding that the appellant has nonfrivolously alleged that her claim concerns employment practices, we find that she has failed to nonfrivolously allege that OPM was involved in administering such employment practices. IAF, Tab 4 at 7, 9-10; PFR File, Tab 1 at 7; see Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 888 (Fed. Cir. 1998) (finding that the appellant failed to allege that OPM was involved in the establishment of allegedly improper minimum qualifications for the position to which he applied).

¶11 The appellant claims that the agency erred in its application of its rules regarding the pass-over of individuals with a veterans' preference. PFR File, Tab 1 at 7-8, Tab 4 at 10. The pass-over provisions set forth at 5 U.S.C. § 3318(c) have been found to constitute an employment practice applied by OPM. Lackhouse v. Merit Systems Protection Board, 734 F.2d 1471, 1474 (Fed. Cir. 1984). However, because the agency used a direct-hiring authority pursuant to 10 U.S.C. § 1599c and 5 U.S.C. § 3304(a)(3), section 3318 was not directly...

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