Thomas J. Luchay v. Department of the Navy ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS J. LUCHAY, DOCKET NUMBER
Appellant, PH-3443-13-2901-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 12, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas J. Luchay, Mullica Hill, New Jersey, pro se.
Toya M. McLendon, Esquire, West Bethesda, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
regulation or the erroneous application of the law to the facts of the case; the
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, and based on the following points and authorities, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a GS-13 Chemical Engineer, filed a Board appeal
challenging a September 10, 2012 grievance decision that investigated and found
without merit the appellant’s assertion that the selectee for the Branch Head
position “falsified his résumé/questionnaire.” Initial Appeal File (IAF), Tab 1;
see also IAF, Tab 12 at 8-9 (grievance decision). The appellant, in response to
the agency’s motion to dismiss and two orders to show cause, asserted that:
(1) the agency committed a prohibited personnel practice; (2) the agency engaged
in age discrimination because the selectee was 10 years younger than the
appellant and other interview candidates; and (3) the Board had jurisdiction over
the appeal as an employment practices appeal and a suitability determination. See
IAF, Tabs 5, 8, 11. The administrative judge issued an initial decision in which
he dismissed the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision
(ID). The administrative judge determined that the appellant did not
nonfrivolously allege that the agency violated an employment practice as applied
to him or that the agency took a suitability action. See ID at 3-5. As to the
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appellant’s age discrimination claim, the administrative judge noted that the
appellant’s “bare” claim did not make the action appealable as an employment
practice pursuant to 5 C.F.R. § 300.104(a) and that the Board lacks jurisdiction
over a discrimination claim absent jurisdiction over the appeal under some other
basis. See ID at 4 n.2. The administrative judge also noted that the Board lacked
jurisdiction over the appellant’s claim that the agency action violated the merit
system principles. See ID at 2 n.1. Finally, the administrative judge concluded
that, even if the appellant met the other jurisdictional requirements for appealing
a grievance decision and the subject matter was grievable, the Board lacked the
authority to review the grievance decision because it was not a final decision.
See ID at 6 n.3 (stating that Article 10, Section 2d of the labor management
agreement specifically excluded examination, certification, or appointment from
the grievance procedures).
¶3 The appellant filed a petition for review, the agency filed a response, and
the appellant filed a reply. See Petition For Review (PFR) File, Tabs 1, 3-4. On
review, the appellant argues that the Board has jurisdiction over this appeal under
employment practices and suitability theories.
¶4 We discern no error with the administrative judge’s conclusion that the
Board lacks jurisdiction over this matter as an employment practices appeal.
Indeed, the appellant has not identified, as required by 5 C.F.R. § 300.104(a), any
alleged employment practice applied to him. ID at 4; see Dow v. General
Services Administration, 590 F.3d 1338, 1342-44 (Fed. Cir. 2010) (stating that, in
order 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,” and concluding that the alleged employment practice,
the Outstanding Scholar Program, was not the basis for Mr. Dow’s
nonselection); 5 C.F.R. § 300.104(a) (“A candidate who believes that an
employment practice which was applied to him or her by the Office of Personnel
Management violates a basic requirement in § 300.103 is entitled to appeal to the
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Merit Systems Protection Board under the provisions of its regulations.”). The
appellant’s assertion that his scores and the scores of other candidates were
“intentionally deflated” as compared to the selectee, PFR File, Tab 1 at 8, does
not constitute a nonfrivolous allegation of an employment practice that was
applied to him, see Banks v. Department of Agriculture, 59 M.S.P.R. 157, 160
(1993) (the Board lacks jurisdiction over the appellant’s challenge to his
nonselection and the agency’s alleged irregularities in the selection process),
aff’d, 26 F.3d 140 (Fed. Cir. 1994); see also Prewitt v. Merit Systems Protection
Board, 133 F.3d 885, 887 (Fed. Cir. 1998) (holding that “an individual agency
action or decision that is not made pursuant to or as part of a rule or practice of
some kind does not qualify as an ‘employment practice’”).
¶5 The appellant’s brief discussion of McDonnell v. Department of
Agriculture, 108 M.S.P.R. 443 (2008), at PFR File, Tab 1 at 10, is not persuasive
because the Board, in that matter, discussed an individual right of action (IRA)
appeal, which involves a different jurisdictional burden, see, e.g., Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (explaining
that the Board has jurisdiction over an IRA appeal if the appellant has exhausted
his administrative remedies before the Office of Special Counsel and makes
nonfrivolous allegations that: (1) he engaged in whistleblowing activity by
making a protected disclosure; and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action).
¶6 We also discern no error with the administrative judge’s conclusion that the
Board lacks jurisdiction over this matter as a suitability appeal. The appellant
appears to concede on review that there is no evidence that the Office of
Personnel Management (OPM) or the agency, pursuant to delegated authority
from OPM, took a suitability action. See PFR File, Tab 1 at 5 (“Under 5 [C.F.R.]
§ 1201.3(a)(9) [which discusses suitability actions], the [administrative judge]
and I are in agreement that jurisdiction under this statute does not apply in this
case.”). The appellant appears to argue, however, that the agency’s investigation
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of his allegation that the selectee falsified his résumé or application qualifies as a
specific factor for making a suitability determination pursuant to 5 C.F.R.
§ 731.202(b), and he therefore nonfrivolously alleged that the agency made a
suitability determination. See id. at 12. We find this argument unpersuasive.
Under 5 C.F.R. § 731.202(b), a “[m]aterial, intentional false statement, or
deception or fraud in examination or appointment” is a factor to be considered as
a basis for making a suitability determination; however, the appellant’s allegation
that the selectee falsified his application materials and the agency’s apparent
investigation of that allegation does not automatically convert his claim into an
appealable suitability action. 2
¶7 The appellant also asserts on review that the administrative judge’s
suitability analysis does not address the Board’s decision in National Treasury
Employees Union v. Office of Personnel Management, 118 M.S.P.R. 83 (2012).
PFR File, Tab 1 at 13. He states that this case stands for the proposition that the
Board’s statutory jurisdiction extends to other suitability actions such as
debarment and cancellation of eligibilities because, in conjunction with removal
actions, these actions lie outside the Board’s jurisdiction as components of a
unitary penalty arising from the same underlying misconduct. See id. The
appellant further asserts that the “underlying misconduct” in this case is a
prohibited personnel practice. Id. This argument is not persuasive. The National
Treasury Employees Union case does not stand for the proposition cited by the
appellant. Rather, the Board extended its jurisdiction to a review of such
suitability actions in the context of a removal in Aguzie v. Office of Personnel
2
Even if we were to determine that the agency’s investigation of the appellant’s
allegation that the selectee falsified his application materials somehow satisfied the
criteria for making a suitability determination as described in 5 C.F.R. § 731.202(b), the
appellant’s nonselection for a specific position does not constitute a suitability action
even if it is based on reasons set forth in 5 C.F.R. § 731.202. See 5 C.F.R.
§ 731.203(b); see Upshaw v. Consumer Product Safety Commission, 111 M.S.P.R. 236,
¶ 8 (2009).
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Management, 116 M.S.P.R. 64, ¶ 34 (2011). The Board’s analysis in Aguzie does
not govern our disposition in this matter because, here, there is no chapter 75
action, such as a removal or suspension of more than 14 days, from which the
Board has statutory jurisdiction. See 5 U.S.C. §§ 7512, 7513(d). Moreover, the
appellant’s allegation that the agency committed a prohibited personnel practice
is not an independent source of Board jurisdiction. See Wren v. Department of
the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶8 On review, the appellant reiterates that his February 1, 2012 grievance was
not pursuant to collective bargaining procedures. PFR File, Tab 1 at 12; see IAF,
Tab 11 at 7-8 (explaining that the form he used to file his grievance was not the
form for filing collective bargaining agreement procedures). The appellant has
not persuaded us that this fact, even if true, warrants a different outcome on the
jurisdictional issue.
¶9 Also on review, the appellant includes a February 1, 2012 grievance form, a
December 21, 2011 Freedom of Information Act response, and “[e]xamples of
falsification and lack of qualifications” of the selectee. PFR File, Tab 1 at 4, 14-
59. These documents were either in the record below and do not constitute new
evidence or they do not change the outcome on review. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980).
¶10 In light of our disposition, we need not address the timeliness of the
appellant’s appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
7
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.