Christopher D. Findlay v. Department of Labor
Background
- Appellant Christopher D. Findlay, a GS-14 Industrial Hygienist, appealed his nonselection for a Supervisory Industrial Hygienist promotion, characterizing the action as a negative suitability determination.
- He alleged he had performed supervisory duties for two years, was interviewed twice, and raised multiple complaints about the selection process and the certificate of eligibles (including a pending FOIA request and grievance).
- The administrative judge issued a jurisdictional show-cause order; Findlay filed several responses focused on merits and the FOIA/grievance but did not identify an appealable statutory basis.
- The AJ dismissed the appeal for lack of jurisdiction without a hearing, concluding nonselection and a negative suitability determination are not appealable to the Board in these circumstances.
- Findlay petitioned for review asking the Board to keep the case open pending FOIA-produced evidence of preselection; the Board denied the petition and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction over a nonselection for promotion | Findlay argued the nonselection was a negative suitability determination and raised allegations of improper selection/preselection | Agency maintained nonselection is not an appealable adverse action and suitability regs exclude single-position nonselection | Held: No jurisdiction; nonselection is not appealable under chapter 75 and Board lacks jurisdiction over suitability claims for a single-position nonselection |
| Whether the suitability regulation allows Board review of this nonselection | Findlay contended the suitability determination was improper and appealed under suitability rules | Agency relied on 5 C.F.R. § 731.203 (nonselection for a specific position not appealable) | Held: Board lacks jurisdiction under 5 C.F.R. part 731 for this claim |
| Relevance of pending FOIA request to jurisdiction | Findlay argued FOIA documents may show prohibited personnel practices/preselection | Agency argued FOIA evidence does not create jurisdiction where none otherwise exists | Held: FOIA request is immaterial; absent an otherwise appealable action, FOIA materials do not confer Board jurisdiction |
| Entitlement to a hearing before dismissal | Findlay implied factual issues warrant a hearing (nonfrivolous allegations) | Agency argued appellant failed to make nonfrivolous jurisdictional allegations | Held: No nonfrivolous jurisdictional allegations were made; dismissal without hearing was proper |
Key Cases Cited
- Maddox v. Merit Systems Protection Board, 759 F.2d 9 (Fed. Cir. 1985) (Board jurisdiction is limited to matters conferred by law)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) (nonfrivolous allegations required to entitle appellant to a hearing on jurisdiction)
- Wren v. Department of the Army, 681 F.2d 867 (D.C. Cir. 1982) (Board lacks jurisdiction over certain prohibited personnel practice claims absent an appealable action)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court enforces statutory deadlines for appeals to the Federal Circuit)