Assahn Naye v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ASSAHN NAYE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1754
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0731-24-0205-I-1.
______________________
Decided: February 4, 2025
______________________
ASSAHN N AYE, St. Augustine, FL, pro se.
ALLISON J ANE BOYLE, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent.
______________________
Before T ARANTO, SCHALL , and CHEN, Circuit Judges.
P ER CURIAM .
Case: 24-1754 Document: 28 Page: 1 Filed: 02/04/2025

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NAYE v. MSPB 2
Assahn Naye applied to the U.S. Department of Home-
land Security (DHS) to be hired as a Border Patrol Agent.
DHS made him a tentative offer of employment, contingent
on the successful completion of several pre-employment re-
quirements, but later determined that Mr. Naye was un-
suitable for the position and withdrew the offer. Mr. Naye
appealed DHS’s decision to the Merit Systems Protection
Board, which dismissed his appeal for lack of jurisdiction.
Naye v. Department of Homeland Security, No. AT-0731-
24-0205-I-1, 2024 WL 1754027, at 1–4 (M.S.P.B. Feb. 1,
2024) (Decision).1 Mr. Naye now appeals the Board’s deci-
sion to us. We affirm.
I
On October 3, 2023, DHS made Mr. Naye a tentative
offer to fill a Border Patrol Agent position with DHS’s Cus-
toms and Border Protection component. The offer stated
that his receipt of a final job offer was “contingent upon
successfully completing all pre-employment hiring steps,”
including a background investigation. S. Appx. 49.2 On
November 20, 2023, DHS notified Mr. Naye that it had con-
cluded that he was “not suitable for the position” because
of “[c]riminal or dishonest conduct” and “[m]isconduct or
negligence in employment,” and as a result, “[his] tentative
offer of employment [was] withdrawn.” S. Appx. 87–88.
The notice informed Mr. Naye that the determination
“[did] not prevent [him] from reapplying” and recom-
mended that he “address the factors that may have led to
the unfavorable suitability determination prior to reapply-
ing” for another position. S. Appx. 87.
1 For the Decision, we cite the page numbers on the
opinion as it appears in Petitioner’s Appendix in this court.
2 “S. Appx.” refers to the Supplemental Appendix
submitted by Respondent to this court.
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NAYE v. MSPB 3
On December 19, 2023, Mr. Naye appealed the agency’s
suitability determination and non-selection to the Board.
Within two weeks, the Board administrative judge as-
signed to the matter ordered Mr. Naye to “file evidence and
argument that this action [was] within the Board’s juris-
diction.” S. Appx. 56. Mr. Naye’s response did not address
the issue of jurisdiction. Neither in his initial appeal filing
nor in the ensuing proceedings did Mr. Naye allege that the
agency’s decisions were due to discrimination. See S. Appx.
16–22; S. Appx. 79–86.
DHS then filed a motion to dismiss the appeal on the
ground that, under government regulations of the U.S. Of-
fice of Personnel Management (OPM), the agency’s non-se-
lection decision for a specific position, even if “based on the
criteria for making suitability determinations,” is not ap-
pealable under 5 C.F.R. § 731.203(b). The administrative
judge dismissed the appeal for lack of jurisdiction, and that
decision became the Board’s final decision on March 7,
2024. Decision, at 3–4. Mr. Naye timely appealed.
II
We have jurisdiction to decide this appeal under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b) unless this mat-
ter falls within 5 U.S.C. § 7702—for which § 7703(b)(1)(A)
and (b)(2) create an exception to our jurisdiction. That is,
we have jurisdiction unless § 7702 applies to this case. We
conclude that § 7702 does not apply here.
Section 7702 addresses a defined class of cases before
the Board. Under § 7702(a)(1), a case within that class
must be one in which the employee or applicant seeking
Board review (A) “complains of having suffered a serious
adverse personnel action appealable to the [Board]” and (B)
“attributes the adverse action, in whole or in part, to bias
prohibited by [specified] federal antidiscrimination laws.”
Harris v. Securities & Exchange Commission, 972 F.3d
1307, 1317 (Fed. Cir. 2020); see 5 U.S.C. § 7702(a)(1)(A)–
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NAYE v. MSPB 4
(B). In this case, it suffices for us to conclude that the sec-
ond requirement is not met.
The record makes clear that Mr. Naye did not allege
before the Board that the agency’s unfavorable decisions
were due to prohibited discrimination. See S. Appx. 16–22;
S. Appx. 79–86. Mr. Naye states to us that he raised dis-
crimination claims before the Board (and that he does not
wish to abandon them), but he does not identify any such
claims. We are required to consider our own jurisdiction,
and we see no such claims raised before the Board. Mr.
Naye did not complain to the Board of “discrimination pro-
hibited under the laws provided in 5 U.S.C. § 7702(a)(1).”
McCoy v. Merit Systems Protection Board, 121 F.4th 204,
207 (Fed. Cir. 2024). Under § 7702(a)(1)(B), that omission
makes § 7702 inapplicable. We therefore have jurisdiction
to review the Board’s decision.
We decide de novo whether an appeal submitted to the
Board was within its jurisdiction. Forest v. Merit Systems
Protection Board, 47 F.3d 409, 410 (Fed. Cir. 1995). The
Board’s jurisdiction is strictly limited to actions that are
made appealable to the Board by “law, rule, or regulation.”
5 U.S.C. § 7701(a); see Ricci v. Merit Systems Protection
Board, 953 F.3d 753, 756 (Fed. Cir. 2020). The Board has
jurisdiction, not over all actions based on “suitability deter-
minations,” but only over a specified subset (labeled “suit-
ability actions”)—i.e., a cancellation of eligibility, removal,
cancellation of reinstatement eligibility, or debarment
based on unfavorable suitability determinations. 5 C.F.R.
§§ 731.202, 731.203(a)–(b); see also Ricci, 953 F.3d at 757
(“OPM regulations make clear that not every ‘suitability
determination’ gives rise to an appealable ‘suitability ac-
tion.’”). A “non-selection, or cancellation of eligibility for a
specific position” based on the criteria for determining suit-
ability is not one of the appealable suitability actions. 5
C.F.R. § 731.203(b); see id. § 731.202 (criteria); Ricci, 953
F.3d at 757.
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NAYE v. MSPB 5
Here, the Board correctly determined that it lacked ju-
risdiction over Mr. Naye’s appeal of the agency’s decision
not to hire him for the specific position at issue because
that decision was not an appealable suitability action.
When the agency notified Mr. Naye of its decisions, it ex-
pressly stated that he could reapply for the position or
other agency positions. The determination here is thus a
“non-selection . . . for a specific position,” 5 C.F.R.
§ 731.203(b), which is not a suitability action over which
the Board has jurisdiction.
III
Accordingly, we affirm the Board’s dismissal for lack of
jurisdiction.
The parties shall bear their own costs.
AFFIRMED
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