United States Court of Appeals for the Federal Circuit
October 14, 1999
GEORGE J. LODER, PETITIONER,
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.
Before Mayer, Chief Judge, Plager, and Bryson, Circuit Judges.
Mr. George J. Loder appealed to the Merit Systems Protection Board ("Board") the Office of Personnel Management's ("OPM") failure initially to correctly assess his qualifications for the position of Museum Specialist. In an April 1, 1999, final decision (Docket No. AT-300A-98- 0528-I-1), the Board dismissed his appeal for lack of jurisdiction. We affirm the Board's dismissal.
In 1997, Mr. Loder applied for a position as a Museum Specialist at the Maxwell Air Force Base in Alabama. OPM processed the certificate of eligibles for the Department of the Air Force. Based upon the information provided in his application, OPM concluded that he was ineligible because he did not meet the minimum education and experience requirements for the position. Mr. Loder requested that OPM reconsider the rating determination. Upon reconsideration, Mr. Loder was once again rated ineligible. Subsequently, Mr. Loder submitted additional information to OPM and requested they reconsider the rating determination again. With the additional information provided by Mr. Loder, OPM found that he was eligible for the position. However, by the time he was rated eligible, the position had already been filled. OPM notified Mr. Loder that the position was no longer available and advised him that if the Air Force requested another certificate of eligibles for that position, his name would be submitted.
Mr. Loder appealed his non-selection for the Museum Specialist position to the Board, claiming that OPM should have rated him eligible in its initial determination. After reviewing submissions from the parties regarding the Board's jurisdiction over the case, the Board concluded that it did not have jurisdiction over Mr. Loder's appeal from OPM's rating determination because Mr. Loder did not identify an "employment practice" that OPM improperly applied.
The scope of the Board's jurisdiction is a question of law which we review independently. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996). The Board's jurisdiction is not plenary; rather it is limited to actions designated as appealable to the Board "under any law, rule, or regulation." 5 U.S.C. § 7701(a) (1994). Mr. Loder has the burden of establishing the Board's jurisdiction. See Prewitt v. Merit Sys. Protection Bd., 133 F.3d 885, 886 (Fed. Cir. 1998); 5 C.F.R. § 1201.56(a)(2) (1997).
In general, an agency's failure to select an applicant for a vacant position is not appealable to the Board. See Prewitt, 133 F.3d at 886. Thus, claims of unlawful conduct in the selection process typically must be brought before other forums. See id.
However, the Board has original jurisdiction to review employment practices administered by OPM "to examine and evaluate the qualifications of applicants for appointment in the competitive service." 5 C.F.R. § 1201.3(a)(19). 5 C.F.R. § 300.104(a) limits the Board's jurisdiction to "employment practice[s] . . . applied to [a candidate] by the Office of Personnel Management."
The "employment practice" that Mr. Loder challenges in this case is the alleged error by OPM in its initial ineligible rating determination. Mr. Loder alleges that OPM applied improper methods of evaluating his application by arbitrarily dismissing or not understanding the work experiences he described in his application.
"[A]n 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." Prewitt, 133 F.3d at 887; see also Banks v. Department of Agriculture, 59 M.S.P.R. 157 (1993) (failure to consider all relevant education and experience and other alleged irregularities in the selection process do not constitute an employment practice), aff'd, 26 F.3d 140 (Fed. Cir. 1994) (table). The alleged disregard or incomprehension of his work experience by OPM is an "irregularity in the selection process" rather than an application of a specific rule, provision, or policy by the agency. See Prewitt, 133 F.3d at 887. Thus, the alleged disregard or incomprehension is not an employment practice that is appealable to the Board.
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