Dev Iyer v. Department of the Treasury

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3013
DEV IYER,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Dev Iyer, of Havertown, Pennsylvania, pro se.
Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant
Director.
Appealed from: Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3013
DEV IYER,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Petition for review of the Merit Systems Protection Board in PH3443070016-I-1
__________________________
DECIDED: February 11, 2008
__________________________
Before RADER, LINN, and PROST, Circuit Judges.
PER CURIAM.
Dev Iyer petitions for review of an adverse decision of the Merit Systems
Protection Board (“Board”) that dismissed his appeal for lack of jurisdiction. Iyer v.
Dep’t of the Treasury, PH3443070016-I-1 (M.S.P.B. Aug. 17, 2007). We find no
reversible error by the Board and therefore affirm.
BACKGROUND
Mr. Iyer applied for the position of internal revenue agent in Wilmington,
Delaware, in response to a vacancy announcement by the Department of the Treasury,
Internal Revenue Service (“the agency”). After an interview, the agency tentatively
offered the position to Mr. Iyer, pending completion of preliminary inquiries, and

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scheduled him to attend orientation. Shortly before the scheduled orientation, the
agency placed Mr. Iyer’s offer on hold due to issues arising during a background
investigation. The agency requested that the Office of Personnel Management (“OPM”)
make a suitability determination regarding Mr. Iyer. The OPM concluded that
inconsistencies in Mr. Iyer’s application resulted from typographical errors, and that any
misconduct during earlier employment occurred sufficiently prior to the present
application to preclude adjudication by the OPM.
Notwithstanding the OPM’s decision, communications within the agency indicate
that the human resources department understood that the business unit did not want to
hire Mr. Iyer. After consulting with employment specialists in the agency and the
selecting official, the human resources department notified Mr. Iyer that the agency was
no longer filling the vacancy in Wilmington.
After Mr. Iyer challenged the agency’s decision by appealing to the Board on
October 5, 2006, an administrative judge conducted a hearing. Mr. Iyer argued that the
Board had jurisdiction because the agency had in fact based its action on suitability
factors. Iyer v. Dep’t of the Treasury, PH3443070016-I-1, slip op. at 9–10 (M.S.P.B.
Feb. 2, 2007) (“Initial Decision”). The administrative judge dismissed Mr. Iyer’s appeal
for lack of jurisdiction, accepting the agency’s stated reason for nonselection—that it
decided not to fill the position. Id.
The Board subsequently denied Mr. Iyer’s petition for review making the
administrative judge’s initial decision the final decision of the Board. Mr. Iyer timely filed
a petition for review with this court.
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DISCUSSION
We have jurisdiction over petitions for review of Board decisions under 28 U.S.C.
§ 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. We must set aside
agency actions, findings, or conclusions we find “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence . . . .” 5 U.S.C. § 7703(c).
The administrative judge considered all of the testimony at the hearing,
concluding that Mr. Iyer failed to prove that the agency based its decision on suitability
factors. Initial Decision, slip op. at 9. In reaching that conclusion, the administrative
judge evaluated the credibility of the witnesses and found no reason to doubt the
agency’s position. Id. This court will rarely disturb such evaluations, as credibility
determinations are “virtually unreviewable” at this level. Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The administrative judge accepted as
true that the agency was prepared to go forward with an unsuitability determination, but
did not have to do so when the selecting official decided not to fill the position. Initial
Decision, slip op. at 10. With that understanding, the Board does not have jurisdiction
based on the agency’s nonselection in this case. See Prewitt v. Merit Sys. Prot. Bd.,
133 F.3d 885, 886 (Fed. Cir. 1998) (stating nonselection is an issue generally not
appealable to the Board).
Mr. Iyer also seeks the Board’s jurisdiction based on a constructive suitability
determination by the agency. Under that theory, however, he must demonstrate that
the agency acted under delegated authority from the OPM to make the suitability
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2008-3013 4
determination. See Duggan v. Dep’t of the Interior, 98 M.S.P.R. 666, 669 (2005). The
issue the agency believed could support unsuitability here was incorrect information
provided by Mr. Iyer in his application. Initial Decision, slip op. at 3–4. Under the
regulations, the OPM does not delegate authority for determinations in cases involving
“material, intentional false statement or deception or fraud in examination or
appointment.” 5 C.F.R. § 731.103(a). Therefore, Mr. Iyer has also failed to establish
the Board’s jurisdiction under a constructive suitability theory.
For the foregoing reasons, we affirm the decision of the Board.
COSTS
No costs.

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