Nichols v. MSPB , 625 F. App'x 987 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL A. NICHOLS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3064
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-14-0159-I-1.
______________________
Decided: July 13, 2015
______________________
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.
2 NICHOLS v. MERIT SYS. PROT. BD.
PER CURIAM.
Petitioner Michael A. Nichols appeals the decision of
the Merit Systems Protection Board (“the Board”) dis-
missing 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.
BACKGROUND
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 require-
ments 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 selec-
tions, 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 against
NICHOLS v. MERIT SYS. PROT. BD. 3
him 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 noti-
fied 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 require-
ments of the position being filled; (4) using
knowledge, skills, and abilities . . . in making the
selection which were different from those listed in
1 Mr. Nichols characterizes his appeal as “a mixed-
case appeal,” which “is an appeal filed with the [Board]
that alleges that an appealable agency action was effect-
ed, in whole or in part, because of discrimination.” 29
C.F.R. § 1614.302 (2011). This classification is important
because claims of discrimination are normally not within
the Board’s jurisdiction, but “[i]f the Board has jurisdic-
tion to review an agency action against an employee,
Congress has also authorized it to adjudicate the employ-
ee’s claims of discrimination.” Conforto v. Merit Sys. Prot.
Bd., 713 F.3d 1111, 1115 (Fed. Cir. 2013). Such mixed
cases, if decided on the merits, are then appealable to a
federal district court, or to the Equal Employment Oppor-
tunity Commission (“EEOC”) and then to a district court
if necessary, but not to this court. Id. at 1116. However,
“when the Board dismisses a purported mixed case appeal
for lack of jurisdiction, any appeal from that decision is to
this court.” Id. at 1121.
4 NICHOLS v. MERIT SYS. PROT. BD.
the position announcement; and (5) using selec-
tion 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 sub-
mit any supporting evidence with his response.
On January 27, 2014, the administrative judge dis-
missed 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 adminis-
tering; and (2) the appellant makes a non-frivolous allega-
tion 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 Deci-
sion, 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 Agen-
cy 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-
NICHOLS v. MERIT SYS. PROT. BD. 5
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 irregu-
larity 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 al-
lege 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 responsi-
bilities of the position, without more, fails to nonfrivolous-
ly establish how the agency’s job analysis is deficient or
how the agency misapplied those standards.” Id. There-
fore, the Board found Mr. Nichols did not establish Board
jurisdiction over his appeal.
Mr. Nichols appeals. This court has jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
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) unsupport-
ed 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 of
6 NICHOLS v. MERIT SYS. PROT. BD.
law 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 “un-
less 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 appli-
cant 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) (un-
published)). Pursuant to 5 C.F.R. § 300.104(a) (“Employ-
ment 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 practic-
es “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 made
NICHOLS v. MERIT SYS. PROT. BD. 7
pursuant 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 prerequi-
site to be satisfied, however, OPM’s involvement in the
selection process must be significant.” Id. at 888 (empha-
sis 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 iden-
tify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities
required to perform the duties and re-
sponsibilities; and
(3) The factors that are important in eval-
uating candidates. The job analysis may
cover a single position or group of posi-
tions, or an occupation or group of occupa-
tions, 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 of discrimination. An employment practice
8 NICHOLS v. MERIT SYS. PROT. BD.
must not discriminate on the basis of[, inter alia,]
. . . sex . . . [or] age.
5 C.F.R. § 300.103; see Vesser v. Office of Pers. Mgmt., 29
F.3d 600, 603 (Fed. Cir. 1994) (“[A]n employment practice
[must] be (a) based on a ‘job analysis’ that sets forth the
duties of and qualifications for the position, (b) relevant to
performance in the position, and (c) not discriminatory.”).
“In order to establish Board jurisdiction, the petition-
er must ‘make [ ] non-frivolous allegations of jurisdiction
supported by affidavits or other evidence.’” Marcino v.
U.S. Postal Serv., 344 F.3d 1199, 1202 (Fed. Cir. 2003)
(quoting Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356,
1361 (Fed. Cir. 2002)). Mr. Nichols bears the burden of
demonstrating Board jurisdiction by a preponderance of
the evidence. Fields v. Dep’t of Justice, 452 F.3d 1297,
1302 (Fed. Cir. 2006); see also 5 C.F.R. § 1201.56(a)(2).
III. Mr. Nichols Has Not Demonstrated Board Jurisdic-
tion by a Preponderance of the Evidence
On appeal, Mr. Nichols contends “the selection crite-
ria—those criteria by which applicant resumes were rated
and ranked—were not based on a valid, professionally
developed job analysis in accordance with the basic re-
quirements of 5 C.F.R. § 300.103.” Pet’r’s Br. 3. He says
these scoring criteria were “not logically related to the
positions for which I had applied, and that this would not
have occurred had a legally required job analysis been
conducted.” Id. Mr. Nichols argues “if the knowledges,
skills, and abilities that are used as the basis for selecting
candidates are not based on a job analysis that provides
the foundational relevance to the position (see 5 C.F.R.
[§ ]300.103(b)), it stands to reason that merit principles
are being violated.” Id. at 8. He also argues “the selection
criteria were developed in a discriminatory manner
intended to favor certain female co-workers.” Id. at 3.
NICHOLS v. MERIT SYS. PROT. BD. 9
As to the involvement of OPM, Mr. Nichols argues “if
an agency fails to conduct a valid OPM requirement
codified by Part 300, it has misapplied a valid OPM
requirement.” Id. at 27. He also contends that many of
his issues would “have been resolved had the Board
involved the [OPM] as they seem to be required to do by 5
U.S.C. § 7701(d)(2). . . . I have little doubt that OPM
would agree that their ‘Basic Requirements’ in 5 C.F.R.
Part 300 were not adhered to by the [Agency].” Id. at 30.
As to the lack of supporting evidence for these allega-
tions, Mr. Nichols says this resulted from the Agency’s
failure to treat his case as a mixed case. 2 Id. at 10. He
asserts he “took great care . . . to file a mixed-case EEO
complaint rather than file directly to the Board because it
was [his] belief that an EEO investigation would prove
useful prior to going before the Board.” Id. at 4. Because
the Agency’s Report of Investigation was not placed on the
record, as he believes was required by 5 C.F.R.
§ 1201.25(c), he was unable to provide the requested
evidence. Without additional discovery, Mr. Nichols
conceded he “didn’t have much in the way of evidence.”
Id. at 10. However, he provided citations to the Report of
Investigation and an email from the Human Resources
Liaison who handled the challenged selections, and Mr.
Nichols “believe[s] that these two references, which were
my most compelling documents without the benefit of
2 To the extent Mr. Nichols argues the Board erred
in failing to treat this appeal as a mixed-case, these
arguments do not support jurisdiction. That is, discrimi-
nation claims are not within the Board’s jurisdiction
unless “the Board ha[d] jurisdiction to review an agency
action against an employee.” See Conforto, 713 F.3d at
1115. Because the Board found it did not have jurisdic-
tion to review Mr. Nichols’s § 300.103 appeal, it would not
have jurisdiction to hear the discrimination claims.
10 NICHOLS v. MERIT SYS. PROT. BD.
additional discovery, should have been enough to satisfy
any non-frivolous allegation requirements regarding
jurisdiction.” Id. at 11. That is, “referencing a citation
within the investigative file that the agency should have
provided to the Board in its entirety should have been
satisfactory documentation for matters of establishing
jurisdiction.” Id. at 13.
In addition, Mr. Nichols points out that on the very
day the administrative judge issued the Initial Decision,
his representative was preparing to submit a Motion to
Compel Discovery and a Motion for Sanctions for the
failure of the Agency to comply with 5 C.F.R. § 1201.25.
Id. at 12. These Motions were not filed because the
administrative judge had already rendered a decision in
the case. Thus, Mr. Nichols argues, he “was not provided
adequate time for discovery” and the administrative
judgment “failed to enforce 5 C.F.R. § 1201.25(c), and
compel the Agency to submit ‘[a]ll documents contained in
the agency record of the action.’” Id. at 1.
The Government responds that “[t]he Board consid-
ered all relevant facts and correctly determined that [Mr.
Nichols] failed to make a non-frivolous allegation that the
Board had jurisdiction over his appeal.” Resp’t’s Br. 7.
First, it argues the Board correctly found Mr. Nichols
failed to show the Agency’s action constituted an “em-
ployment practice” for purposes of the regulations, and
that his allegations at best show “an irregularity in the
selection process, . . . rather than an application of a
specific rule by the agency.” Id. at 10–11. Second, the
Government asserts Mr. Nichols failed to show “OPM was
involved in the administration of the alleged employment
practice.” Id. at 12 (“Petitioner made only a bare asser-
tion that the agency misapplied OPM’s regulatory re-
quirement that a job analysis be used to identify the basic
duties and responsibilities of the position.”).
NICHOLS v. MERIT SYS. PROT. BD. 11
The Government also argues this court should reject
Mr. Nichols’s argument that the Agency or the Board was
responsible for the lack of evidence. It says Mr. Nichols
“himself presumably had a copy of the agency’s report of
investigation, and could have submitted portions of it in
response to the [administrative judge’s] jurisdictional
order.” Id. at 14 (citing Final Order at 6 n.3). As to Mr.
Nichols’s argument that he should have been given more
time to conduct discovery, the Government responds
“[a]dministrative judges have broad discretion in ruling
on discovery matters, and absent an abuse of discretion,
will not be reversed by the Board.” Id. (citing Morrison v.
Dep’t of the Navy, 122 M.S.P.R. 205, 209 (2015)).
To establish jurisdiction under 5 C.F.R. § 300.104(a),
Mr. Nichols must make non-frivolous allegations, sup-
ported by evidence, that (1) an “employment practice” (2)
applied to him by OPM (3) violated § 300.103 because it
was not based on a “job analysis” that was relevant to the
position or was discriminatory. See Marcino, 344 F.3d at
1202; Meeker, 319 F.3d at 1373; Vesser, 29 F.3d at 603.
Here, Mr. Nichols has raised non-frivolous allegations
that an employment practice—the selection criteria used
by the Agency for the positions at issue—violated
§ 300.103 because they were not based on a “job analysis”
that was relevant to the position or were discriminatory.
As noted, the term “employment practices” “has a natural-
ly broad and inclusive meaning,” Dowd I, 713 F.2d at 723,
and is defined by regulation as those practices “that affect
the recruitment, measurement, ranking, and selection of
individuals for initial appointment and competitive pro-
motion,” 5 C.F.R. § 300.101. The selection criteria used
by the Agency in this case fall within the breadth of this
definition. The Board’s conclusion that the challenged
employment practice was better characterized “‘as an
irregularity in the selection process rather than an appli-
cation of a specific rule, provision, or policy by the agen-
cy,’” Final Order at 4 (quoting Prewitt, 133 F.3d at 887), is
12 NICHOLS v. MERIT SYS. PROT. BD.
refuted by the fact that Mr. Nichols challenged the selec-
tion criteria used to fill more than one position, not his
non-selection for a particular position.
That Mr. Nichols was unable to support his assertion
that the identified employment practice violated § 300.103
was due, at least to some extent, to the Agency’s failure to
place the Report of Investigation on the record of this
appeal. The Board’s statement that Mr. Nichols “pre-
sumably had a copy of the agency’s [Report of Investiga-
tion] and could have submitted portions of it in response
to the administrative judge’s jurisdictional order,” id. at 6
n.3, ignored “procedures required by . . . regulation.”
Forest, 47 F.3d at 410 (citing 5 U.S.C. § 7703(c)). In
particular, the Agency was required to submit to the
Board “[a]ll documents contained in the agency record of
the action” under 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.”). Mr. Nich-
ols’s citations to the Report of Investigation, if placed on
the record by the Agency as required by regulation, would
have served as preponderant evidence to support his non-
frivolous allegations of jurisdiction. See Fields, 452 F.3d
at 1302; Marcino, 344 F.3d at 1202.
However, the Board correctly concluded that Mr.
Nichols failed to demonstrate the alleged employment
practice was applied by OPM, or that “OPM’s involvement
in the selection process was . . . significant.” See Prewitt,
133 F.3d at 888. As the Board observed, there was no
evidence to establish “OPM was involved in the admin-
istration of the practice at issue” or “was involved in the
agency’s allegedly improper development of the scoring
criteria.” Final Order at 5. That is, Mr. Nichols “has not
satisfied his burden of establishing Board jurisdiction
with respect to th[e employment] practices . . . because he
has not shown that OPM was involved in the administra-
tion of [the] practices.” Prewitt, 133 F.3d at 887–88; see
also Dowd v. Office of Pers. Mgmt., Dep’t of Army (Dowd
NICHOLS v. MERIT SYS. PROT. BD. 13
II), 745 F.2d 650, 651 (Fed. Cir. 1984) (“[S]ince OPM
played no part in the [employment practice applied] to
petitioner by the Department of the Army, OPM had not
applied any employment practice to petitioner.”). Without
such a showing, Mr. Nichols cannot establish jurisdiction
under 5 C.F.R. § 300.104(a). Accordingly, the Board’s
dismissal for lack of jurisdiction was proper.
CONCLUSION
For the reasons set forth above, the decision of the
Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.