Jack Kligman v. INTERNAL REVENUE SERVICE, Human Resources

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4042
JACK KLIGMAN,
Appellant
v.
INTERNAL REVENUE SERVICE, (Human Resources)
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. No. 06-cv-05325
(Honorable Mary A. McLaughlin)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Opinion filed: April 9, 2008)
OPINION
PER CURIAM
Jack Kligman appeals, pro se, from an order of the district court dismissing his
appeal for lack of subject matter jurisdiction. For the reasons that follow, we will affirm.

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Under 5 C.F.R. § 332.405 “[a]n appointing officer is not required to consider an1
eligible [applicant] who has been considered by him for three separate appointments from
the same or different certificates for the same position.”
The record indicates that this conviction was the subject of an Executive Grant2
of Clemency in the form of a “Full and Unconditional Pardon” in December 2000.
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I.
The parties’ familiarity with the facts and procedural history is assumed. To
summarize, in 1999 Kligman applied for a position as a seasonal tax examiner with the
Internal Revenue Service (“IRS”) for the 1999-2000 tax season, but was not ultimately
selected for appointment. In 2001, having not heard from the IRS, Kligman inquired
about his apparently not being selected for the position. Kligman was advised that he had
been removed from consideration pursuant to the Office of Personnel Management’s
(“OPM’s”) “rule of three.” See 5 C.F.R. §§ 332.404, 332.405. Kligman argued,1
however, that instead of being the subject of a determination under the “rule of three” he
was, in fact, found unsuitable for the position by the IRS because of a previous felony
conviction for conspiracy and mail fraud in 1985.2
In 2005, Kilgman filed an action in the district court alleging that the IRS had
improperly conducted a suitability determination in his case without following the
required procedures for making such a determination. The district court rejected his
complaint, without prejudice, after determining that Kligman had failed to exhaust his
administrative remedies. Kligman then appealed the IRS’s decision to the Merit Systems

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The MSPB is an administrative body created by the Civil Service Reform Act of3
1978, 5 U.S.C. § 1201 et seq., to adjudicate appeals by federal employees.
In the body of its opinion, the MSPB included a “NOTICE TO THE APPELLANT4
REGARDING YOUR FURTHER REVIEW RIGHT” specifically informing Kligman
that he had the right to request the United States Court of Appeals for the Federal Circuit
to review the final decision. The MSPB also made Kligman aware that he was to file
such a petition no later than 60 calendar days after his receipt of the order.
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Protection Board (“MSPB”) challenging the OPM’s implementation of the “rule of3
three” in his case and its impact on his alleged fraudulent nonselection. In November
2005, an Administrative Judge issued a decision in which he found that the MSPB did not
have jurisdiction to review Kligman’s suitability claim and that only the full board of the
MSPB had authority to review the application of OPM’s rules and regulations. Kligman
filed a petition for review with the full board of the MSPB, which issued a decision in
October 2006 holding that he had failed to show that any OPM regulation on its face or as
implemented by the IRS required the commission of a prohibited personnel practice. See4
Kligman v. Office of Pers. Mgmt., 103 M.S.P.R. 614, 620-621 (2006). In December
2006, Kligman re-filed his complaint against the IRS in the district court. In March 2007,
the IRS filed a motion to dismiss the complaint for lack of subject matter jurisdiction. On
August 20, 2007, the district court granted that motion. Kligman filed a timely notice of
appeal.
II.
Our review of the district court’s order is plenary. See Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000) (citation omitted). A motion to dismiss under

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The IRS, in fact, informs us that Kligman filed an appeal of the MSPB’s decision5
with the Federal Circuit, but that the appeal was voluntarily dismissed per Kligman’s
request in December 2007.
Section 7703(b)(1) states that “[e]xcept as provided in paragraph (2) of this6
subsection, a petition to review a final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.”
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Rule 12(b)(1) may be treated as either a facial or a factual attack on the court’s subject
matter jurisdiction. See Gould Elecs. Inc., 220 F.3d at 176. The district court properly
treated the motion here as a factual attack. As such, the court was permitted to consider
evidence outside the pleadings. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d
884, 891 (3d Cir. 1977). Further, “no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will
have the burden of proof that jurisdiction does in fact exist.” Id.
III.
The district court correctly concluded that it lacked subject matter jurisdiction to
entertain Kligman’s complaint and that his appeal should have been made to the United
States Court of Appeals for the Federal Circuit. Decisions of the MSPB are generally5
subject to review only by the Court of Appeals for the Federal Circuit, not by the district
courts. See 5 U.S.C. § 7703(b)(1); see also Kean v. Stone, 926 F.2d 276, 281 (3d Cir.6
1991); Carroll v. Dep’t of Health & Human Servs., 703 F.2d 1388, 1390 (Fed. Cir. 1983).
District courts, however, do have jurisdiction over “mixed” cases decided by the MSPB.

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Discrimination cases subject to the provision of § 7702 include cases where an7
employee (1) has been affected by an action which the employee may appeal to the
MSPB, and (2) alleges that a basis for the action was discrimination prohibited by, inter
alia, section 717 of the Civil Rights Act of 1964. See 5 U.S.C. § 7702(a)(1)(A, B).
Under 5 C.F.R. § 731.202, when making an unsuitability determination, OPM8
may by regulation consider only enumerated factors, including misconduct or negligence
in employment, criminal conduct, deception, alcohol and drug abuse, violent
anti-government activities, and regulatory or statutory bars to employment. The IRS has
steadfastly denied that such a determination was made in this case.
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See 5 U.S.C. §§ 7702(a)(1), 7703(b)(2). A mixed case is one in which an employee
alleges that an employment action of an agency adversely affected him and is appealable
to the MSPB, and that a basis for the adverse action was unlawful discrimination. See 57
U.S.C. § 7702(a)(1)(A, B). Kligman’s claims are in no way discrimination claims; thus
his case is not a “mixed” one.
Kligman’s attempts to somehow circumvent the structure of federal personnel
adjudication—and essentially forum shop—are ill-founded. First, as the district court
held, to the extent that Kligman’s present appeal is a direct challenge to the MSPB’s
decision, the district court plainly lacked subject matter jurisdiction over it because the
MSPB has original jurisdiction over challenges to OPM rules and regulations and appeals
of those decisions are properly made to the Court of Appeals for the Federal Circuit. See
5 U.S.C. § 7703(b)(1). Second, to the extent that Kligman challenges an alleged
surreptitious suitability determination made by the IRS in his case, given his suspicion
regarding the role his previous conviction played in his nonselection, this claim is not
properly a subject of review in this court. Kligman argues that not only was there no8

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In fact, findings of the MSPB regarding questions of law, including jurisdiction,9
are reviewed without deference to the Board. See Rasing v. Dep’t of Navy, 444 F.3d
1349, 1353 (Fed. Cir. 2006).
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jurisdiction over his claim at the MSPB level, but that there was no jurisdiction over the
MSPB’s determination before the Court of Appeals for the Federal Circuit because no
explicit negative suitability determination was ever made in his case. Following his logic,
the district court is the only forum whereby he may seek redress. See 28 U.S.C. § 1331.
Kligman’s argument, however, is belied by not only the clear statutory language
we have already set forth, but by numerous cases indicating that the types of questions
Kligman raises are, in fact, routinely addressed by both the MSPB and the Court of
Appeals for the Federal Circuit. Far from being novel, his contention concerning an
implied negative suitability determination is the type of argument with which MSPB is
intimately familiar. See e.g., Edwards v. Dep’t of Justice, 87 M.S.P.R. 518, 523 (2001)
(“Under Edwards, Botello, and Dillingham, the appellant can establish jurisdiction by
showing that the agency had delegated authority from OPM to make suitability
determinations, and that its decision not to select him, although purportedly based on his
‘qualifications’ for the Correctional Officer position, was in actuality a finding that he
was unsuitable for employment in that position within the meaning of 5 C.F.R. Part
731”). Further, where the MSPB has declined to exercise its jurisdiction, the Court of
Appeals for the Federal Circuit has provided the proper forum for redress. See9
Lackhouse v. Merit Sys. Prot. Bd., 773 F.2d 313, 317 (Fed. Cir. 1985) (“The end-result is

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that we reverse the Board’s holding that it lacked jurisdiction over Lackhouse’s appeal”).
The arguments Kligman now puts forth concerning the alleged pretense of the IRS’s
decision not to select him are to be addressed in these forums and these forums alone.
For the foregoing reasons, we will affirm the district court’s decision.
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