Thomas E. Hopkins, III v. Department of Justice
Background
- Hopkins was selected for a GS-11 HR Specialist in Fargo and received an email described as a “formal offer.”
- Minutes after the offer email, the agency began the required background investigation and warned his desired July start date was not guaranteed pending clearance.
- Hopkins relocated to Fargo at his own expense; the agency told his prior employer it could backfill his position.
- The preliminary background investigation disclosed unresolved matters; the agency refused to sign a prehire security waiver and withdrew the offer.
- Hopkins appealed to the MSPB claiming the withdrawal was a suitability determination, violated employment‑practice rules, and deprived him of due process; the AJ dismissed for lack of jurisdiction.
- The Board denied review, finding the action was a nonselection (not an appealable suitability action), no cognizable OPM employment‑practice claim, and no entitlement to due process because no appointment occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: suitability action vs. nonselection | Hopkins: withdrawal of a "firm offer" was a suitability determination requiring Board review | DOJ: withdrawal was a nonselection; not an appealable suitability action under 5 C.F.R. part 731 | Held: Nonselection; Board lacks jurisdiction over suitability claim (MSPB jurisdiction limited to actions like removals, debarments) |
| OPM employment‑practice claim | Hopkins: agency violated basic requirements for employment practices and mischaracterized offer as tentative | DOJ: alleged actions were post‑selection and not OPM‑administered employment practices | Held: No cognizable employment‑practice claim—(1) not an OPM‑administered practice, (2) not within definition of "employment practices," and Hopkins was not a candidate under regs |
| Due process / appointment status | Hopkins: firm offer bound agency; rescission without due process was unlawful | DOJ: selection conditioned on successful background clearance; no formal appointment occurred | Held: No property interest or due process right because no formal appointment was made; selection contingent on clearance |
| Damages for relocation/estoppel | Hopkins: relied on offer, moved (PCS), incurred expense; agency should be responsible | DOJ: vacancy announcement disclaimed relocation expenses; agency warned start date was not set | Held: Hopkins bore relocation consequences; agency expressly disclaimed relocation pay and cautioned start date was tentative |
Key Cases Cited
- Alvarez v. Department of Homeland Security, 112 M.S.P.R. 434 (MSPB) (nonselection is not a suitability action)
- Tines v. Department of the Air Force, 56 M.S.P.R. 90 (MSPB) (Board lacks jurisdiction over nonselections)
- Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 403 (MSPB) (standards for OPM employment‑practice appeals)
- Lewis v. General Services Administration, 54 M.S.P.R. 120 (MSPB) (appointment requires an unequivocal act by appointing official)
- Dowd v. United States, 713 F.2d 720 (Fed. Cir.) (misapplication of OPM‑administered practice standard)
- National Treasury Employees Union v. Office of Personnel Management, 118 M.S.P.R. 83 (MSPB) (only candidates may bring employment practices appeals)
- Sapla v. Department of the Navy, 118 M.S.P.R. 551 (MSPB) (limited circumstances where nonselections may be reviewable)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir.) (filing deadlines for appeals to the Federal Circuit)
- Meier v. Department of the Interior, 3 M.S.P.R. 247 (MSPB) (documents already in the record are not "new" on review)