Paul G. Miranne v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAUL G. MIRANNE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3128
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-13-0527-B-1.
______________________
Decided: December 16, 2015
______________________
P AUL G. MIRANNE , Pensacola, FL, pro se.
L INDSEY SCHRECKENGOST , Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
______________________
Before D YK, BRYSON, and WALLACH , Circuit Judges.

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MIRANNE v. MSPB 2
P ER CURIAM
Mr. Paul G. Miranne seeks review of a final decision
of the Merit Systems Protection Board (“MSPB”) dismiss-
ing his appeal for lack of jurisdiction. Because we find
that Mr. Miranne’s complaint does not sufficiently allege
that an employment practice administered by the Office of
Personnel Management (“OPM”) violated one of the basic
requirements of 5 C.F.R. § 300.103, we affirm.
BACKGROUND
Mr. Miranne is a Personnel Psychologist with the De-
partment of the Navy (“agency”). In December 2008, Mr.
Miranne applied for a Supervisory Personnel Psychologist
position with the Naval Education and Training Profes-
sional Development and Technology Center. However,
Mr. Miranne was not selected for the position.
Mr. Miranne appealed to the Board on April 15, 2013.
He alleged that the agency used invalid selection criteria
(criteria used to rate and rank candidates) to favor or
disfavor specific types of candidates.
After some preliminary proceedings, an MSPB admin-
istrative judge dismissed the appeal for lack of jurisdic-
tion because he found that Mr. Miranne had not made a
“non-frivolous” allegation that an employment practice
administered by OPM violated one of the “basic require-
ments” for employment practices set forth in OPM regula-
tions. R.A. 10. The Board affirmed, finding that Mr.
Miranne “failed to identify an employment practice that
OPM administers or an OPM requirement that the agen-
cy misapplied.” R.A. 3. Mr. Miranne now petitions for
review.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). We review the Board’s jurisdiction, a ques-
tion of law, de novo, but review factual determinations

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MIRANNE v. MSPB 3
relating to jurisdiction for substantial evidence. Bolton v.
Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
D ISCUSSION
The sole issue before us is whether the Board correct-
ly held that it lacked jurisdiction over Mr. Miranne’s
appeal. “An agency’s failure to select an applicant for a
vacant position is generally not appealable to the Board,”
including non-selections for promotion. See Prewitt v.
Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998);
Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed.
Cir. 1993). However, the Board does have limited juris-
diction to hear appeals relating to non-selection that
allege “that an employment practice which was applied to
him or her by the Office of Personnel Management vio-
lates a basic requirement” of merit promotion. 5 C.F.R.
§ 300.104 These basic requirements are that employ-
ment practices must be based on (a) a job analysis identi-
fying the basic duties and qualifications for the position
being filled, that are (b) relevant to the performance in
that position, and (c) not discriminatory. 5 C.F.R.
§ 300.103; see also Vesser v. OPM, 29 F.3d 600, 603 (Fed.
Cir. 1994); Dowd v. United States, 713 F.3d 720, 722 n.9
(Fed. Cir. 1983).
Mr. Miranne has the burden of proving the Board’s
jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(c)(2). Because Mr. Miranne is challenging
employment practices, he must demonstrate: “first, the
appeal must concern an ‘employment practice [adminis-
tered by OPM], and second, the employment practice
must be alleged to have violated one of the ‘basic re-
quirements’ for employment practices set forth in 5 C.F.R.
§ 300.103.” Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368,
1373 (Fed. Cir. 2003); Prewitt, 133 F.3d at 887.
Mr. Miranne alleges that the agency’s selection crite-
ria used in hiring for the position for which he was not

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MIRANNE v. MSPB 4
hired were not in line with the basic requirements laid
out in the regulations. The regulations require that
“[e]ach employment practice of the Federal Government
generally, and of individual agencies, shall be based on a
job analysis” identifying the duties of the position and the
skills required, that “[t]here shall be a rational relation-
ship between performance in the position to be filled
. . . and the employment practice used,” and that the
“employment practice must not discriminate” on non-
merit-based factors. 5 C.F.R. § 300.103. Mr. Miranne
alleges that a job analysis was not undertaken for the
position being filled and that, as a result, there is little
relevance between the selection criteria used for the
position and the requirements of the position. See id. He
further alleges that the selection criteria were “gerry-
mandered” to improve the outcome of a specific applicant
or group of applicants, and were discriminatory. Nowhere
in his jurisdictional pleadings does Mr. Miranne point to
OPM’s involvement with the development of the selection
criteria for this particular provision, nor any specific OPM
rule or regulation that was applied to him.
We find that Mr. Miranne has not established the
Board’s jurisdiction. To maintain jurisdiction, “OPM’s
involvement in an agency’s selection process may be
sufficient to characterize a non-selection action by that
agency as a practice applied by OPM. For that prerequi-
site to be satisfied, however, OPM’s involvement in the
selection process must be significant.” Prewitt, 133 F.3d
at 888; see also Dowd v. Office of Pers. Mgmt., Dep't of
Army, 745 F.2d 650, 651 (Fed. Cir. 1984) (affirming the
Board’s dismissal for lack of jurisdiction since “OPM
played no part in the ineligible rating given to [the]
petitioner” and thus “OPM had not applied any employ-
ment practice to [the] petitioner”).
Mr. Miranne argues that “an agency’s misapplication
of a valid OPM requirement may constitute an appealable

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MIRANNE v. MSPB 5
employment practices action.” See, e.g. Mapstone v. Dep't
of the Interior, No. AT-3443-07-0076-B-1, 2008 WL
4435025 (M.S.P.B. Sept. 26, 2008). In other words, Mr.
Miranne argues that direct OPM involvement is not
required and that because the agency’s actions allegedly
violated a regulation developed by OPM, OPM is suffi-
ciently involved to satisfy this prong of the jurisdictional
requirement.
Although we agree that OPM need not directly be in-
volved, some sort of OPM involvement is necessary so as
to not render that requirement a nullity. All of our cases
Mr. Miranne cites for this proposition involve an agency’s
application of a specific OPM policy alleged to be in viola-
tion of the basic requirement. See Prewitt, 133 F.3d at
887 (listing cases);. We have found jurisdiction only when
the appellant showed that OPM made the “pivotal deci-
sion” that resulted in non-selection, see Maule v. Merit
Sys. Prot. Bd., 812 F.2d 1396, 1398 (Fed. Cir. 1987), or
that OPM’s promulgation of a rule was the “direct cause”
of the agency’s action, see Lackhouse v. Merit Sys. Protec-
tion Bd., 773 F.2d 313, 315 n.3 (Fed. Cir. 1985). None
involved an agency’s alleged failure to apply an OPM
regulation. We agree with the Board that an alleged
failure to implement an OPM regulation does not demon-
strate OPM involvement or establish Board jurisdiction.1
AFFIRMED
COSTS
No costs.
1 In addition, because we find that the Board cor-
rectly concluded that it did not have jurisdiction absent
OPM involvement, we find no error in the Board’s denial
of discovery related to the allegedly defective employment
practices.

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