Libby A. Demery v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LIBBY A. DEMERY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE ARMY,
Intervenor
______________________
2025-1157
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-24-0105-I-1.
______________________
Decided: November 4, 2025
______________________
L IBBY A. D EMERY , Clinton, MD, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
ELINOR J OUNG K IM , Commercial Litigation Branch,
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DEMERY v. MSPB 2
Civil Division, United States Department of Justice, Wash-
ington, DC, for intervenor. Also represented by STEVEN
J OHN G ILLINGHAM , P ATRICIA M. MC CARTHY , BRETT
SHUMATE.
______________________
Before M OORE, Chief Judge, HUGHES and STOLL , Circuit
Judges.
P ER CURIAM .
Libby Demery seeks review of the Merit Systems Pro-
tection Board’s decision that it lacks jurisdiction to hear
her case. The Board did not err and so we affirm.
I
In October 2010, Ms. Demery interviewed with the De-
partment of the Army’s National Guard Bureau for a posi-
tion as a Management Analyst. The interview panel
recommended Ms. Demery for the position, but the hiring
authority offered the position to another candidate from
the Army’s Priority Placement Program (PPP), who ac-
cepted in December 2010. 1
Following her non-selection, Ms. Demery filed a series
of complaints under various legal theories all stemming
from the issue of her non-selection for the Management An-
alyst role.2 On November 1, 2023, Ms. Demery filed the un-
derlying Board appeal (MSPB No. DC-3443-24-0150-I-1),
indicating she was appealing an “other action” by the Army
that she characterized as a “[f]ailure to provide judicial
1 The facts underlying this appeal are discussed
more fully in Demery v. Dep’t of Army, 809 F. App’x 892,
894–95 (Fed. Cir. 2020).
2 Ms. Demery currently has another appeal before
this court. Demery v. Merit Sys. Prot. Bd., No. 24-2215
(Fed. Cir. 2024).
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DEMERY v. MSPB 3
reviewable decision within 120 days of formal mixed com-
plaint.” S.A. 30–33.3 In the “formal mixed complaint” at is-
sue, Ms. Demery brought allegations of age discrimination,
improper personnel practices, and harmful procedural er-
ror in relation to her non-selection. S.A. 2, 11–12.
The administrative judge issued two show cause orders
regarding jurisdiction. The first show cause order included
guidance on how to establish the Board’s jurisdiction over
her claims and ordered Ms. Demery to respond with infor-
mation to prove jurisdiction. S.A. 34–43. A large portion of
the order included instructions regarding Veteran Employ-
ment Opportunity Act (VEOA) claims, as the administra-
tive judge had construed Ms. Demery’s complaint to
contain one. Ms. Demery responded that she was not filing
a VEOA claim, but a “mixed case” involving alleged age dis-
crimination and 5 U.S.C. § 3318 violations.4 SAppx 27–28.
Ms. Demery also included three documents from a prior
equal employment opportunity claim and later requested a
hearing. SAppx 25–32, 35–38.
In the second show cause order, the administrative
judge acknowledged that Ms. Demery was not filing a
VEOA claim, attempted to clarify Ms. Demery’s claims,
provided additional guidance on establishing jurisdiction
for employment practice claims, and noted that her appeal
3 S.A. refers to the Supplemental Appendix attached
to the Respondent’s Informal Response Brief. SAppx refers
to the Supplemental Appendix attached to the Intervenor’s
Informal Brief. Appx refers to the documents attached to
Ms. Demery’s briefs. The Appendix in the Opening Brief
ends at what has been designated as Appx28, and the Ap-
pendix in the Reply Brief begins at Appx29.
4 Sections 3317 and 3318 articulate the OPM proce-
dures regarding selecting eligible candidates for vacant po-
sitions in the competitive service from a register certified
by OPM. 5 U.S.C. §§ 3317–3318.
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DEMERY v. MSPB 4
appeared to be untimely. S.A. 46–53. Ms. Demery re-
sponded that the administrative judge made an “erroneous
and unsupported suggestion” that the underlying issue of
her claim was her non-selection.5 SAppx 42–43. She stated
that her appeal was not a non-selection appeal because she
had received an “unofficial tentative job offer” and was told
to “await [an] official offer” from the Civilian Personnel Ad-
visory Center (CPAC). Id.
On February 6, 2024, the administrative judge issued
an initial decision dismissing Ms. Demery’s appeal for lack
of jurisdiction. S.A. 16–17. The initial decision noted that
the Board typically does not have jurisdiction over non-se-
lection claims, which it found Ms. Demery’s claims to
amount to despite her prior assertions otherwise.
S.A. 14–15. The initial decision also determined the Board
did not have jurisdiction over her age discrimination, im-
proper personnel practices, and procedural error allega-
tions “[a]bsent an otherwise appealable action.” S.A. 14.
The initial decision also considered whether Ms. Dem-
ery’s claims would fall under an Employment Practice alle-
gation—one of the “limited circumstances in which the
Board does have jurisdiction to consider an appeal of a non-
selection.” S.A. 15. The administrative judge determined
that Ms. Demery failed to satisfy the two required ele-
ments to establish such jurisdiction. S.A. 15–16. The initial
decision also determined that Ms. Demery was not entitled
to a hearing. S.A. 16 (citing Garcia v. Dep’t of Homeland
Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc)).
5 Ms. Demery’s response also addressed the timeli-
ness and laches issues that the administrative judge noted
in the second cause order. S.A. 44. Since the Board, by dis-
missing for lack of jurisdiction, did not reach the timeliness
or laches issue, we decline to address them. SAppx 12 n.3.
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DEMERY v. MSPB 5
Ms. Demery filed an administrative petition for review
by the full Board. Appx10–18. The Board affirmed the ini-
tial decision’s findings that the Board lacked jurisdiction
over Ms. Demery’s claims and found her claim of bias or
prejudice against the administrative judge unpersuasive.
S.A. 2–5. Ms. Demery now appeals the Board’s final deci-
sion. Since Ms. Demery’s case is not a mixed case, we have
jurisdiction under 28 U.S.C. § 1295(a)(9).6 See 5 U.S.C.
§ 7703(b); Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307,
1318 (Fed. Cir. 2020).
II
We set aside a Board decision only if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review the Board’s conclusion that it lacks
jurisdiction de novo. Bryant v. Merit Sys. Prot. Bd.,
878 F.3d 1320, 1325 (Fed. Cir. 2017).
6 Our jurisdiction was originally in dispute because
our jurisdiction over MSPB appeals is limited. Diggs v.
Dep’t of Hous. & Urb. Dev., 670 F.3d 1353, 1355 (Fed. Cir.
2011). We lack jurisdiction over “mixed cases,” which are
cases where the appellant “(1) has been affected by an ac-
tion that the appellant may appeal to the Board and (2) al-
leges that a basis for the action was discrimination
prohibited by enumerated federal statutes.” Ash v. Off. of
Pers. Mgmt., 25 F.4th 1009, 1011 (Fed. Cir. 2011); cf.
5 U.S.C. § 7703(b)(1)(A). Such cases must be brought in
district court. Ash, 25 F.4th at 1011. On May 5, 2025,
Ms. Demery filed a new Form 10 “Statement Concerning
Discrimination,” abandoning her discrimination claims, no
longer making it a “mixed case.” Dkt. No. 29 at 3.
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DEMERY v. MSPB 6
III
The Board can hear matters over “which it has been
given jurisdiction by law, rule, or regulation.” 5 C.F.R.
§ 1201.3(a). Accordingly, the Board has jurisdiction over
several enumerated claims, such as “[a]dverse actions” and
“[e]mployment practices” appeals. 5 C.F.R.
§ 1201.3(a)(1), (7).
Ms. Demery argues that the Board erred in dismissing
her (1) non-selection claim, (2) employment practices claim
based on alleged violations of 5 U.S.C. §§ 3317–3318, and
(3) age discrimination claim under the Age Discrimination
in Employment Act (ADEA)7 for lack of jurisdiction. See
Pet. Br. 2–4, 8–9. Ms. Demery also argues that the admin-
istrative judge erred by failing to provide “explicit instruc-
tions . . . on how to establish an appealable action,”
refusing to consider evidence, and failing to sanction the
Army for not appearing during her Board proceedings. Pet.
Br. 2, 15–16, 18.
A
An agency’s decision to not select an applicant for a va-
cant position generally cannot be appealed to the Board.
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir.
1998). Claims of unlawful conduct during the employment
selection process must therefore ordinarily be brought in
other forums. Id. Furthermore, allegations of a prohibited
personnel practice are not an independent source of the
Board’s jurisdiction, unless the allegations are tied to an
“otherwise appealable personnel action.” Brodt v. Merit
Sys. Prot. Bd., 11 F.3d 1060, 1061 (Fed. Cir. 1993).
Although Ms. Demery asserts that her circumstances
do not constitute non-selection, we disagree. Ms. Demery
7 Because Ms. Demery has waived her discrimina-
tion claim, we do not address it. Dkt. No. 29.
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DEMERY v. MSPB 7
argues that she received a tentative employment offer that
was rescinded, so she was not challenging a “non-selec-
tion.” Pet. Br. 3. (arguing that the administrative judge
“misrepresent[ed] the facts of the case” by determining
Ms. Demery was challenging a non-selection). It is clear
from the record that Ms. Demery never received an official
job offer, nor an official tentative offer, by the hiring au-
thority. SAppx 42–43 (“No official . . . offer ever
came . . . .”); Appx1 (“[A tentative job offer] will not be ex-
tended to Demery . . . .”); Appx35 (“Only CPAC has the au-
thority to extend tentative and firm job offers.”). Rather,
Ms. Demery was recommended and ultimately not se-
lected. The record thus shows that what occurred is tanta-
mount to non-selection. Errors during the selection process
alone do not provide the Board jurisdiction. See Prewitt,
133 F.3d at 886; see also Brodt, 11 F.3d at 1061.
Ms. Demery’s argument about improper personnel
practices also cannot be brought without an “otherwise ap-
pealable adverse action.” Brodt, 11 F.3d at 1061. Ms. Dem-
ery failed to establish an independently appealable adverse
action, as non-selection is not an adverse action within the
Board’s jurisdiction under 5 U.S.C. § 7512. Section 7512
states what actions are covered, and non-selection is not
included. The Army’s decision to go with another candidate
rather than Ms. Demery, or to rescind an unofficial, tenta-
tive job offer, does not constitute any enumerated covered
action under 5 U.S.C. § 7512.
B
While the Board generally does not have jurisdiction
over non-selection claims, there is an exception providing
the Board limited jurisdiction if the petitioner alleges that
the non-selection resulted from OPM’s application of an
employment practice that violates a requirement of
5 C.F.R. § 300.103. To prevail in establishing jurisdiction
under an employment practices appeal, the petitioner must
show “(1) that the actions in question constitute
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DEMERY v. MSPB 8
employment practices, and (2) that OPM is involved in the
administration of those practices.” Prewitt, 133 F.3d
at 887. Ms. Demery has failed to establish either.
Ms. Demery alleges that “the agency failed to seek
OPM pass over prior to [selecting] a significantly younger
former employee” in violation of 5 U.S.C. §§ 3317 and 3318,
which she believes constitutes a violation of employment
practices under Lackhouse v. Merit Sys. Prot. Bd. (Lack-
house I), 734 F.2d 1471 (Fed. Cir. 1984) and Lackhouse v.
Merit Sys. Prot. Bd. (Lackhouse II), 773 F.2d 313 (Fed. Cir.
1985). Pet. Br. 3–4, 7 (“There is no question of whether
5 USC Sections 3317 and 3318 are OPM Employment prac-
tices since this court found and ruled it so in Lackhouse v.
MSPB (Fed Cir 1986).”) (cleaned up). The Lackhouse opin-
ions are inapplicable here. Lackhouse I was remanded for
further factual development and Lackhouse II involved a
challenge to the validity of the rule of three. Lackhouse I,
734 F.2d at 1475; Lackhouse II, 773 F.2d at 315 & n.3. By
contrast, Ms. Demery challenges the application of the rule
of three to her case, which was not at issue in Lackhouse II.
She does not argue that the rule itself is invalid—just that
the Army failed to properly apply the regulation at issue.
Likewise, Ms. Demery’s “employment practice” argu-
ment also fails because she did not show that OPM was
“involved in the administration” of the alleged employment
practices actions. Prewitt, 133 F.3d at 887. We have held
that “OPM’s involvement in the selection process must be
significant,” to satisfy the second requirement. Id. at 888.
Ms. Demery has not brought forward any facts showing
OPM’s involvement in the administration of the selection
process for the position at issue. Ms. Demery’s only asser-
tion of OPM’s involvement was that the Army was an OPM
“delegate[ed] examining unit.” See Pet. Br. 16–17. The
Army’s alleged failure to properly implement an OPM reg-
ulation does not show sufficient OPM involvement to es-
tablish jurisdiction. See Maule v. Merit Sys. Prot. Bd., 812
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DEMERY v. MSPB 9
F.2d 1396, 1398 (Fed. Cir. 1987) (exercising jurisdiction be-
cause OPM made the “pivotal decision” resulting in non-
selection). Because the record does not show how OPM was
significantly involved in her non-selection, we agree with
the Board that the necessary OPM involvement is not pre-
sent.
C
We have considered Ms. Demery’s other arguments
and find them unpersuasive.
IV
Because Ms. Demery did not allege facts supporting
the Board’s jurisdiction, we affirm.
AFFIRMED
COSTS
No costs.
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