Luchay v. MSPB , 628 F. App'x 747 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS J. LUCHAY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3010
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3443-13-2901-I-1.
______________________
Decided: October 13, 2015
______________________
THOMAS J. LUCHAY, Mullica Hill, NJ, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before NEWMAN, CLEVENGER, and MOORE, Circuit Judges.
2 LUCHAY v. MSPB
NEWMAN, Circuit Judge.
Thomas J. Luchay appeals the decision of the Merit
Systems Protection Board (MSPB or Board) dismissing
his appeal of non-selection for a position of Branch Head
in the Department of the Navy. 1 We affirm the Board’s
decision.
DISCUSSION
Mr. Luchay was employed by the Navy as a Chemical
Engineer, grade GS-13. In 2011 he applied for the adver-
tised position of Branch Head. He was not selected for
the position and subsequently filed a grievance, stating
that the person who was selected did not meet the qualifi-
cations for the position and had falsified the qualifications
stated on his résumé.
Mr. Luchay and his union representative met with the
Commanding Officer of the section who explained that
“matters regarding any examination, certification, or
appointment are specifically excluded from the grievance
and arbitration procedures,” in accordance with the Labor
Management Agreement. Grievance Dec. on Command
Level Review, Sept. 10, 2012, at 1. However, the Com-
manding Officer had initiated an inquiry into the allega-
tion of falsification of records. The Commanding Officer
issued a decision on the grievance, stating that the person
who was selected did not provide inaccuracies and that
his qualifications had been substantiated. The Officer
concluded that he “was properly certified for the Code 650
Branch Head position.” Id. at 2.
Mr. Luchay appealed to the MSPB, stating: that the
Navy had committed a prohibited personnel practice; that
the Navy engaged in age discrimination because the
1 Luchay v. Department of the Navy, No. PH–3443–
13–2901–I–1 (M.S.P.B. Aug. 12, 2014).
LUCHAY v. MSPB 3
person selected was ten years younger than the other
candidates; and that this was an appealable action be-
cause it was an appeal of a suitability determination.
The MSPB Administrative Judge (AJ) ruled that the
Navy had not violated an employment practice as applied
to Mr. Luchay and that the Navy did not take a suitability
action against Mr. Luchay. The AJ explained that the
Board lacks jurisdiction to review an applicant’s non-
selection based on alleged irregularities in the selection
process, absent jurisdiction of the appeal of non-selection
on an authorized ground. The AJ also held that Mr.
Luchay’s claim of age discrimination, of itself, is not
appealable to the MSPB; the Board by footnote mentioned
that discrimination claims may be taken to the EEOC.
Mr. Luchay appealed to the Federal Circuit. On ini-
tial screening, the court observed the discrimination claim
and notified Mr. Luchay that the Federal Circuit does not
have jurisdiction of MSPB rulings on discrimination
claims. Mr. Luchay then dropped the discrimination
issue from this appeal.
MSPB jurisdiction “is limited to actions designated as
appealable to the Board ‘under any law, rule, or regula-
tion.’” Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886
(Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). The non-
selection of an applicant for a federal position is generally
not appealable to the MSPB. Id. However, an applicant
who believes that an employment practice applied to him
violates 5 C.F.R. § 300.103 is generally entitled to appeal
to the Board. See 5 C.F.R. § 300.104(a); Meeker v. Merit
Syss. Prot. Bd., 319 F.3d 1368, 1373 (Fed. Cir. 2003);
Mapstone v. Dep’t of the Interior, 110 M.S.P.R. 122 (2008).
The applicant must show that “there must have been an
‘employment practice’ and that ‘practice’ must have been
‘applied to’ the applicant by the OPM.” Dow v. Gen.
Servs. Admin., 590 F.3d 1338, 1342 (Fed. Cir. 2010)
(quoting 5 C.F.R. § 300.104(a)).
4 LUCHAY v. MSPB
Mr. Luchay argues that his appeal meets the re-
quirements for MSPB appeal, challenging the Navy’s
alleged “employment practice” of inflating the test scores
of the person who was selected for the Branch Head
position and deflating the scores of all other applicants,
including himself. Mr. Luchay states: “I cannot state who
would have actually scored the highest if the process
fairly considered the merits and job qualifications,” Pet’r’s
Br. 3, but he argues that the Navy’s scoring system af-
fected him, thus meeting the regulatory requirement for
appeal in that the allegedly improper employment prac-
tice “was applied to him or her.” 5 C.F.R. § 300.104(a); see
Dow v. GSA, 590 F.3d at 1342 (stating that for the Board
to have jurisdiction it is “necessary that the challenged
employment practice have been applied to the applicant
as the basis for the adverse hiring decision”).
An agency’s manipulation of test scores may indeed
constitute an improper “employment practice.” However,
the Navy stated to the MSPB that there was no evidence
that this practice was applied to reduce Mr. Luchay’s
score or raise the selectee’s score, and we have been
directed to no support for Mr. Luchay’s allegation. The
AJ, as affirmed by the Board, found that this jurisdiction-
al ground did not exist. We discern no error in that
finding.
The AJ also considered the jurisdictional aspect of the
asserted “suitability action,” as set forth in 5 C.F.R.
§ 731.501(a) (“When OPM or an agency acting under
delegated authority under this part takes a suitability
action against a person, that person may appeal the
action to the Merit Systems Protection Board . . . .”). A
suitability action is defined in 5 C.F.R. § 1201.3(a)(9) as:
Action based on suitability determinations, which
relate to an individual’s character or conduct that
may have an impact on the integrity or efficiency
of the service. Suitability actions include the can-
LUCHAY v. MSPB 5
cellation of eligibility, removal, cancellation of re-
instatement eligibility, and debarment.
See also 5 C.F.R. § 731.202(b) (criteria for making suita-
bility determinations); § 731.501(a) (a suitability action
may be appealed to the Merit Systems Protection Board);
§ 731.203(b) (“(b) A non-selection, or cancellation of eligi-
bility for a specific position based on an objection to an
eligible or pass over of a preference eligible under 5 CFR
332.406, is not a suitability action even if it is based on
reasons set forth in § 731.202”), § 731.202(b)(“(1) Miscon-
duct or negligence in employment; (2) Criminal or dishon-
est conduct; (3) Material, intentional false statement, or
deception or fraud in examination or appointment; (4)
Refusal to furnish testimony as required by § 5.4 of this
chapter; (5) Alcohol abuse …; (6) Illegal use of narcotics
…; (7) Any statutory or regulatory bar which prevents the
lawful employment of the person involved in the position
in question.”). The Board correctly held that non-selection
is not a suitability action, even if based on the reasons
defined in the Regulations. Upshaw v. Consumer Product
Safety Commission, 111 M.S.P.R. 236, 240 (2007). The
Board’s ruling conforms to statute, regulation, and prece-
dent, and is affirmed.
Mr. Luchay suggests that the Navy’s investigation of
his allegation that the person selected falsified his appli-
cation qualifies as a suitability determination pursuant to
5 C.F.R. § 731.202(b). He states: “The issue of suitability
is a factor in my employment practices allegation. If the
selectee is shown to have falsified his application, and is
determined to be ineligible, then the question of how he
was rated highest needs to be examined closely.” Pet’r’s
Br. 7. Under § 731.202(b)(3), a “material, intentional
false statement, or deception or fraud in examination or
appointment” is a factor to be considered as a basis for
making suitability determinations.
6 LUCHAY v. MSPB
Mr. Luchay states that he “provided examples that
demonstrated that his scoring was inflated,” Pet’r Br. 2.
However, the Navy’s investigation reached a contrary
conclusion. We discern no error in the Board’s determina-
tion that Mr. Luchay was not the target of a suitability
action. Indeed, Mr. Luchay agrees with this point, con-
ceding that: “Under 5 C.F.R. § 1201.3(a)(9) which discuss-
es suitability actions, the administrative judge and I are
in agreement that jurisdiction under this statute does not
apply in this case.”
Mr. Luchay states that “As a minimum . . . I should be
granted discovery to obtain additional evidence to support
my case.” Reply Br. 7. The Board declined discovery. In
view of the absence of any threshold of support for Mr.
Luchay’s allegations, we conclude that the Board acted
within its discretion. See Parker v. Dept. of Hous. and
Urban Dev., 106 M.S.P.R. 329, 332 (2007) (“An AJ has
wide discretion over matters pertaining to discovery, and
the Board will not reverse his rulings on discovery mat-
ters absent an abuse of discretion.”) (citing Wagner v.
Envtl. Prot. Agency, 54 M.S.P.R. 447, 452 (1992), aff'd,
996 F.2d 1236 (Fed. Cir. 1993)).
CONCLUSION
We have considered all of Mr. Luchay’s arguments.
We conclude that the Board did not err or exceed its
discretionary authority in holding that Mr. Luchay had
not established entitlement to appeal his non-selection for
the position of Branch Head. The appeal was properly
dismissed.
No costs.
AFFIRMED