Arthur Black v. United States Postal Service, AT-3443-17-0480-I-1

Appellant Arthur Black filed a nonselection appeal claiming he was not allowed to apply for a postal inspector position because of race and age discrimination; the administrative judge dismissed the appeal for lack of Board jurisdiction.
On petition for review Black reiterated discrimination claims, asserted veteran status and sought to introduce agency emails he said showed he was barred from applying, but he did not submit those emails below or with the petition.
Black also referenced a prior 2012 Board appeal about denial of an opportunity to apply; that prior appeal was withdrawn and did not alter the present jurisdictional analysis.
The agency and the Board noted Black did not plead facts invoking VEOA or USERRA jurisdiction and that discrimination claims alone do not create Board jurisdiction absent an otherwise appealable action.
The Board declined to consider the purported new emails because Black failed to show the evidence was unavailable before the record closed or that it was material enough to change the outcome under 5 C.F.R. § 1201.115.
The Board denied the petition for review and affirmed the initial decision dismissing the appeal for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board has jurisdiction over Black's nonselection/discrimination claim	Black: agency prevented him from applying for postal inspector due to race and age	Agency: discrimination claims alone do not create Board jurisdiction absent an otherwise appealable action	Held: Board lacks jurisdiction over pure discrimination nonselection claims absent an appealable action
Whether the Board should consider new evidence (agency emails) submitted on review	Black: emails show he was told he could not apply; agency lied and refused to respond, so he could not submit earlier	Agency/Board: evidence not submitted below and Black failed to show it was unavailable with due diligence or material	Held: Denied consideration of new evidence under 5 C.F.R. § 1201.115 and related precedent
Whether veteran-status statutes (VEOA/USERRA) give jurisdiction	Black: claimed eligibility as a disabled veteran and argued that would permit application	Agency/Board: record lacks factual allegations invoking VEOA or USERRA	Held: No VEOA/USERRA jurisdiction shown because appellant did not plead facts to invoke those statutes
Whether prior Board appeal/retaliation claim affects jurisdiction	Black: alleged past Board activity/retaliation related to opportunity to apply	Agency/Board: prior appeal was withdrawn and does not alter jurisdictional outcome here	Held: Prior withdrawn appeal does not change the jurisdictional dismissal

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211 (1980) (Board will not consider evidence submitted first on review absent showing it was unavailable before the record closed)
Russo v. Veterans Administration, 3 M.S.P.R. 345 (1980) (new evidence on review must be of sufficient weight to warrant a different outcome)
Wren v. Department of the Army, 681 F.2d 867 (D.C. Cir. 1982) (Board lacks jurisdiction over discrimination claims absent an otherwise appealable action)
Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017) (district court review option for discrimination claims that are otherwise appealable)