Nichols v. Merit Sys. Prot. Bd., 2015-3064

Decision Date13 July 2015
Docket Number2015-3064
CourtU.S. Court of Appeals — Federal Circuit

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. AT-3443-14-0159-I-1.

MICHAEL A. NICHOLS, Pensacola, FL, pro se.

KATRINA LEDERER, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK.

Before PROST, Chief Judge, NEWMAN and WALLACH, Circuit Judges.


Petitioner Michael A. Nichols appeals the decision of the Merit Systems Protection Board ("the Board") dismissing his appeal for lack of jurisdiction. See Final Order, Nichols v. Dep't of the Navy, AT-3443-14-0159-I-1 (M.S.P.B. Oct. 16, 2014) (Resp't's App. 10-16) ("Final Order"); Initial Decision, Nichols v. Dep't of the Navy, AT-3443-14-0159-I-1 (M.S.P.B. Jan. 27, 2014) (Resp't's App. 1-9) ("Initial Decision"). For the reasons set forth below, this court affirms.


I. Facts and Proceedings

Mr. Nichols is an Education Systems Specialist, GS-12, with the United States Department of the Navy ("Agency") in Pensacola, Florida. On December 6, 2011, Mr. Nichols filed an Equal Employment Opportunity ("EEO") complaint with the Agency, which the Agency investigated and thereafter issued a final agency decision. On November 7, 2013, Mr. Nichols filed with the Board an "Employment Practices (Part 300)" appeal, see 5 C.F.R. pt. 300 (2011), challenging the selection process for certain supervisory positions within the Agency. Specifically, Mr. Nichols alleged the Agency failed to follow the requirements of 5 C.F.R. § 300.103, which delineates the "basic requirements" for employment practices of the federal government, with regard to several selections within the Naval Education and Training Professional Development and Technology Center Command. In making the selections, Mr. Nichols claimed the Agency failed to use a "professionally developed job analysis" to identify the important factors in evaluating candidates. Resp't's App. 31. He also asserted the Agency discriminated againsthim based on age and gender,1 as he was more qualified than the women selected for two positions. In addition, he alleged the Agency did not use a Merit Promotion Plan pursuant to 5 C.F.R. § 335.102 in making these selections.

On December 4, 2013, an administrative judge notified Mr. Nichols of the jurisdictional issues raised by his appeal and ordered him to file arguments and supporting evidence to prove his appeal was within the Board's jurisdiction. In response, Mr. Nichols argued the Agency violated the basic requirements for employment practices by:

(1) failing to have or utilize a merit promotion plan; (2) failing to perform a job analysis; (3) using a scoring criteria [sic] unrelated to the requirements of the position being filled; (4) using knowledge, skills, and abilities . . . in making the selection which were different from those listed inthe position announcement; and (5) using selection criteria developed in a discriminatory manner in order to favor a preferred female candidate for the position.

Initial Decision at 4. Mr. Nichols, however, did not submit any supporting evidence with his response.

On January 27, 2014, the administrative judge dismissed the appeal for lack of jurisdiction. Id. at 1-9. The administrative judge noted a candidate for employment who believes an employment practice violates 5 C.F.R. § 300.103 is entitled to appeal to the Board when: (1) the appeal concerns an employment practice the Office of Personnel Management ("OPM") is involved in administering; and (2) the appellant makes a non-frivolous allegation that the employment practice violated one of the basic requirements for employment practices set forth in § 300.103. Id. at 2 (citing Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1373 (Fed. Cir. 2003)). The administrative judge found Mr. Nichols failed to make a non-frivolous allegation that an employment practice applied to him violated the basic requirements under § 300.103 because Mr. Nichols "provided no meaningful evidence supporting his claim." Id. at 4. Thus, the administrative judge found Mr. Nichols failed to establish Board jurisdiction. Id. at 5.

Mr. Nichols petitioned for review of the Initial Decision, arguing the Agency failed to submit an agency file with all of the relevant information, as required by 5 C.F.R. § 1201.25(c) ("The agency response to an appeal must contain . . . [a]ll documents contained in the agency record of the action."). Final Order at 12. Had the Agency complied, Mr. Nichols asserted, the Agency's "Report of Investigation" developed in response to his original EEO Complaint would have been included. Id.

The Board denied the petition for review and affirmed the administrative judge's decision, agreeing Mr. Nichols failed to establish Board jurisdiction. Id. at 1-7. Specifi-cally, the Board found Mr. Nichols's appeal amounted to a challenge of "the individual selection and scoring criteria developed by the [A]gency, which is unique to a particular position within the [A]gency." Id. at 4. Such a challenge, the Board found, was better characterized "'as an irregularity in the selection process rather than an application of a specific rule, provision, or policy by the agency.'" Id. (quoting Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 887 (Fed. Cir. 1998)). The Board concluded "a challenge to an agency's individualized hiring decision falls outside of the Board's appellate jurisdiction." Id.

In addition, the Board found Mr. Nichols "failed to allege that OPM was involved in the agency's allegedly improper development of the scoring criteria used to select a female candidate over the appellant." Id. at 5. It stated Mr. Nichols's "bare assertion that the agency misapplied OPM's regulatory requirement that a job analysis be used to identify the basic duties and responsibilities of the position, without more, fails to nonfrivolously establish how the agency's job analysis is deficient or how the agency misapplied those standards." Id. Therefore, the Board found Mr. Nichols did not establish Board jurisdiction over his appeal.

Mr. Nichols appeals. This court has jurisdiction pursuant to 28 U.S.C. §§ 1295(a)(9) (2012).

I. Standard of Review

This court's "scope of . . . review of [B]oard decisions is limited to whether they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c) (1988)). The issue of Board jurisdiction is a question oflaw this court reviews de novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is bound by the Board's jurisdictional factual findings "unless those findings are not supported by substantial evidence." Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).

II. Legal Framework

"The Board's jurisdiction is not plenary; it is strictly defined and confined by statute and regulation." Id.; see 5 U.S.C. § 7701(a). "An agency's failure to select an applicant for a vacant position is generally not appealable to the Board." Prewitt, 133 F.3d at 886 (citing Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993) (non-selection for promotion); Diamond v. U.S. Postal Serv., 51 M.S.P.R. 448, 450 (1991) (non-selection for appointment), aff'd, 972 F.2d 1353 (Fed. Cir. 1992) (unpublished)). Pursuant to 5 C.F.R. § 300.104(a) ("Employment practices"), however, "[a] candidate who believes that an employment practice which was applied to him or her by the [OPM] violates a basic requirement in § 300.103 is entitled to appeal to the [Board]." 5 C.F.R. § 300.104(a) (emphases added). Thus, the Board has jurisdiction under § 300.104(a) "when two conditions are met: first, the appeal must concern an 'employment practice' [of the OPM,] and second, the employment practice must be alleged to have violated one of the 'basic requirements' for employment practices set forth in 5 C.F.R. § 300.103." Meeker, 319 F.3d at 1373.

An "employment practice" is defined as those practices "that affect the recruitment, measurement, ranking, and selection of individuals for initial appointment and competitive promotion." 5 C.F.R. § 300.101. While this court has held the term "employment practices" "has a naturally broad and inclusive meaning," Dowd v. United States (Dowd I), 713 F.2d 720, 723 (Fed. Cir. 1983), "an individual agency action or decision that is not madepursuant to or as part of a rule or practice of some kind does not qualify as an 'employment practice.'" Prewitt, 133 F.3d at 887. As to whether an "employment practice" was applied by the OPM, "in certain circumstances, OPM's involvement in an agency's selection process may be sufficient to characterize a non-selection action by that agency as a practice applied by OPM. For that prerequisite to be satisfied, however, OPM's involvement in the selection process must be significant." Id. at 888 (emphasis added).

The "Basic requirements" under § 300.103 include:

(a) Job analysis. 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 knowledges, 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.
(b) Relevance.
(1) There shall be a rational relationship between performance in the position to be filled . . . and the employment practice used. . . .
. . . .
(c) Equal employment opportunity and prohibited forms

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