Kurt Chadwell v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
__________________________
KURT CHADWELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
OFFICE OF PERSONNEL MANAGEMENT,
Intervenor.
__________________________
2009-3302
__________________________
Petition for review of the Merit Systems Protection
Board in DA300A080567-I-1.
__________________________
Decided: December 16, 2010
__________________________
PAUL B. EAGLIN , Eaglin Law Office, of Fairbanks,
Alaska, argued for petitioner.
S TEPHANIE M. CONLEY, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With her on the brief were

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CHADWELL v. MSPB 2
JAMES M. EISENMANN , General Counsel, and KEISHA
D AWN BELL, Deputy General Counsel.
BRIAN M. SIMKIN , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for intervenor. On the brief
were TONY WEST, Assistant Attorney General, JEANNE E.
D AVIDSON , Director, BRYANT G. SNEE, Deputy Director,
and M ICHAEL N. O’CONNELL, JR., Trial Attorney.
__________________________
Before LOURIE, LINN , and PROST, Circuit Judges.
PROST, Circuit Judge.
Petitioner Kurt Chadwell petitions for review of the
final decision of the Merit Systems Protection Board
(“Board”), which dismissed his September 15, 2008 appeal
for lack of jurisdiction. Mr. Chadwell challenged the
Office of Personnel Management’s (“OPM’s”) August 14,
2008 notice that it would not review or process his 2008
application for an administrative law judge (“ALJ”) posi-
tion because one year had not passed since the date he
received a Notice of Results (“NOR”) from his successful
2007 application for an ALJ position. Because OPM’s
one-year rule is not an employment practice, the Board
does not have jurisdiction under 5 C.F.R. § 300.104(a).1
We affirm.
1 5 C.F.R. § 300.104(a) provides that “[a] candi-
date who believes that an employment practice which was
applied to him or her by the Office of Personnel Manage-
ment violates a basic requirement in § 300.103 is entitled
to appeal to the Merit Systems Protection Board under
the provisions of its regulations.”

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CHADWELL v. MSPB 3
BACKGROUND
Mr. Chadwell responded to OPM’s May 4, 2007 ALJ
vacancy notice, seeking to have his name added to the
register of ALJ eligibles. OPM uses the register of eligi-
bles as a source of referrals to respond to agency requests
for lists of eligible candidates for open ALJ positions. On
October 30, 2007, OPM issued a NOR notifying Mr.
Chadwell of his successful completion of all parts of the
ALJ examination. Mr. Chadwell received a final numeri-
cal rating and his name was added to the list of eligible
ALJ candidates. OPM further advised Mr. Chadwell that
“[i]f [he] received a NOR with a final numerical rating,
[he] may retake the examination after one year has
passed from the date of the final NOR and the examina-
tion opens to the receipt of new applications.” J.A. 7.
On July 30, 2008—approximately nine months after
Mr. Chadwell received the NOR from his 2007 ALJ appli-
cation—OPM issued the 2008 ALJ vacancy notice. Mr.
Chadwell responded to the notice, seeking to retake the
ALJ test and have his rating on the register of eligibles
updated based on additional experience earned since his
2007 application. On August 14, 2008, OPM notified Mr.
Chadwell that it would not review or process his 2008
ALJ application because one year had not passed since
OPM had issued its final NOR from Mr. Chadwell’s 2007
ALJ application. However, Mr. Chadwell’s name re-
mained on the register of eligibles based on his 2007
application rating and he continued to be considered for
open ALJ positions. Mr. Chadwell appealed OPM’s
decision and application of the one-year rule to the Board.
During the pendency of Mr. Chadwell’s appeal, the
Board’s administrative judge issued two show cause
orders advising Mr. Chadwell of his burden of proof as to

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CHADWELL v. MSPB 4
whether the Board had jurisdiction over his allegation
that OPM’s application of the one-year rule constitutes an
employment practice. Following the parties’ responses to
the orders, the administrative judge issued an initial
decision dismissing Mr. Chadwell’s appeal of the agency
action for lack of jurisdiction. Mr. Chadwell petitioned for
review. Upon review, the Board’s chairman and vice
chairman split on the disposition of the petition for re-
view. Thus, the administrative judge’s initial decision
became the final decision of the Board. Mr. Chadwell
appealed the Board’s final decision. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our scope of review in an appeal from a decision of
the Board is limited. A decision of the Board must be
affirmed unless it is “(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.” Dickey v. Office of Pers. Mgmt., 419
F.3d 1336, 1339 (Fed. Cir. 2005). We review the question
of whether the Board has jurisdiction over an appeal de
novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378
(Fed. Cir. 1999). Mr. Chadwell carries the burden to
establish the Board’s jurisdiction by a preponderance of
the evidence. See 5 C.F.R. § 1201.56(a)(2).
Whether the Board has jurisdiction over this case
rests on whether Mr. Chadwell can demonstrate that the
agency’s rule constitutes an “employment practice” under
5 C.F.R. § 300.101. Next, he must show that the employ-
ment practice was applied to him in violation of a basic
requirement of 5 C.F.R. § 300.103. This second step,
however, is not implicated by this appeal.

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CHADWELL v. MSPB 5
An employment practice is defined as any practice
that affects “the recruitment, measurement, ranking, and
selection of individuals for initial appointment and com-
petitive promotion in the competitive service.” 5 C.F.R.
§ 300.101. 5 C.F.R. § 300.101 further defines the purpose
of employment practices and notes that the term “‘em-
ployment practices’ includes the development and use of
examinations, qualifications standards, tests, and other
measurement instruments.” We have held that the term
“employment practice” has a “naturally broad and inclu-
sive meaning” and applies to rules having a substantive
or merits-based effect on a candidate’s eligibility for
initial appointment. Dowd v. United States, 713 F.2d 720,
723 (Fed. Cir. 1983).
In this case, Mr. Chadwell argues that the Board has
jurisdiction under 5 C.F.R. § 300.104(a) because OPM
refused to consider his 2008 ALJ application pursuant to
a rule that precludes an existing ALJ candidate from
reapplying until one year after issuance of a final NOR
from a recent application. Mr. Chadwell asserts that the
one-year rule constitutes an employment practice within
the meaning of the regulations and was applied in viola-
tion of at least one of the basic requirements of 5 C.F.R.
§ 300.103.
More specifically, according to Mr. Chadwell, the one-
year rule is an employment practice having a substantive
or merits-based effect on the ranking of ALJ candidates
because (1) it precludes from consideration the class of
individuals that have received their NOR less than one
year prior to an ALJ vacancy announcement, and (2) it
prevents an applicant from increasing his or her examina-
tion score based on additional experience earned during
the period between receipt of the NOR and a new ALJ
vacancy announcement less than one year later. Regard-

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CHADWELL v. MSPB 6
ing the latter, Mr. Chadwell asserts that after notification
of his 2007 ALJ examination score he received two pres-
tigious team awards in recognition of his performance as
a federal government attorney. Based on those awards,
Mr. Chadwell believes that the one-year rule “deprived
him of the higher score he would have likely received” on
the 2008 ALJ examination thereby adversely affecting his
ranking and selection for initial appointment. See Pet’r
Br. at 10, 15.
The government disagrees, contending that OPM’s
one-year rule is not an employment practice and that the
Board therefore lacks jurisdiction over Mr. Chadwell’s
appeal. Specifically, the government asserts that the one-
year rule is procedural because it “reflects an exercise of
OPM’s administrative discretion and is not a substantive
or merits consideration that affects the qualification
standards for the ALJ position.” Resp’t Br. at 11. The
government further asserts that the one-year rule is a
“reasonable procedure for allocating OPM’s limited re-
sources.” Int’r Br. at 10. OPM explains that the one-year
rule allows it to create a broader list of eligible candidates
for appointment to open ALJ positions. OPM contends
that allowing existing, eligible ALJ candidates to reapply
less than one year after receiving a NOR would take away
an otherwise available application slot from new appli-
cants or those ALJ candidates that have waited more
than one year to reapply.2 Id. at 12.
We agree with the government. Mr. Chadwell incor-
rectly argues that the one-year rule is an employment
2 In 2007, OPM capped the number of applications
to the ALJ vacancy announcement at 1,250. OPM re-
ceived that number of applications in less than one week.
In 2008, OPM capped the number of applications to the
ALJ vacancy announcement at 600. Int’r Br. at 11.

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CHADWELL v. MSPB 7
practice because it has a substantive or merits-based
effect on his ranking or selection from the list of eligible
ALJ candidates. The appropriate analysis is not merely
whether the rule has an effect on his ranking within the
list of eligibles; it is whether the rule “affects the recruit-
ment, measurement, ranking, and selection of individuals
for initial appointment and competitive promotion.” See 5
C.F.R. § 300.101 (emphasis added). OPM’s one-year rule
has no effect on Mr. Chadwell’s eligibility for initial
appointment. Despite being ineligible to retake the ALJ
examination in 2008, Mr. Chadwell remained on the list
of eligibles for appointment to vacant ALJ positions based
on his 2007 examination rating. Indeed, his name was
submitted twice to the Social Security Administration in
response to agency requests for lists of eligible candidates
for open ALJ positions. Int’r Br. at 14. Thus, Mr. Chad-
well incorrectly contends that the one-year rule precludes
the class of individuals that have received a NOR less
than one year prior to an ALJ vacancy announcement
from consideration for initial appointment.
Mr. Chadwell’s argument that OPM’s one-year rule
prevents an applicant from raising his or her examination
score based on increased experience earned in the period
between receipt of the NOR and a new ALJ vacancy
announcement less than one year later is similarly un-
availing. Mr. Chadwell’s contention that his score would
have increased based on receipt of various awards or
additional experience is speculative, at best. For in-
stance, Mr. Chadwell could have scored lower in 2008
than he did in 2007. Further, Mr. Chadwell’s argument
fails to consider that if other successful 2007 applicants
were allowed to retake the ALJ exam in 2008, they too
might score higher based on their additional experience
such that any increase in his personal score would be
negated by the increased scores of other applicants. Mr.

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CHADWELL v. MSPB 8
Chadwell was eligible to retake the ALJ examination in
2009 when his professional experience and awards earned
following the 2007 examination could have been appro-
priately scored along with the entirety of his application.
Mr. Chadwell’s eligibility to retake the examination is
further evidence that OPM’s rule is procedural, having no
substantive or merits-based effect on consideration of his
application for initial appointment.
Our determination that OPM’s one-year rule is not an
employment practice is consistent with prior decisions
which found an employment practice where the agency’s
rule at issue affected an applicant’s eligibility for initial
appointment to federal service. For example, in Lack-
house, the petitioner was excluded from further consid-
eration for initial appointment after his application had
been passed over three times. We held that the pass-over
rule constituted an employment practice. See Lackhouse
v. Merit Sys. Prot. Bd., 734 F.2d 1471, 1474 (Fed. Cir.
1984); cf. Maule v. Office of Pers. Mgmt., 40 M.S.P.R. 388,
392-94 (1989), aff’d, 892 F.2d 1050 (Fed. Cir. 1989) (not-
ing that OPM’s “timeliness-of-application” regulation does
not concern the substantive “development and use of
examinations, qualification standards, tests, and other
measurement instruments.”) (citations omitted). Like-
wise, in Vesser, the petitioner’s name was removed from
the list of eligible ALJ candidates resulting in his exclu-
sion from consideration for initial appointment to a va-
cant ALJ position. OPM’s rule that precluded annuitants
from consideration for initial appointment to federal
service was held to be an employment practice. See
Vesser v. Office of Pers. Mgmt., 29 F.3d 600, 603 (Fed. Cir.
1994). Similarly, in Meeker, we held that a formula
change in the scoring of ALJ examinations was an em-
ployment practice where the preliminary rescoring re-
sulted in approximately eighty percent of applicants

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CHADWELL v. MSPB 9
failing to achieve the minimum score necessary for certifi-
cation and continued consideration for initial appoint-
ment as an ALJ. See Meeker v. Merit Sys. Prot. Bd., 319
F.3d 1368, 1370, 1373 (Fed. Cir. 2003). The scoring
formula change clearly implicated the “measurement,
ranking, and selection of individuals for initial appoint-
ment.” 5 C.F.R. § 300.101.
In contrast to the decisions cited above, here, the ap-
plication of OPM’s one-year rule did not prevent Mr.
Chadwell from concurrent or future consideration for
initial appointment to open ALJ positions.3 The timing of
when and whether Mr. Chadwell may modify or update a
pending application, the effect of which is purely specula-
tive, is a procedural matter and a reasonable exercise of
the agency’s discretion. In sum, the government is correct
that OPM’s one-year rule is a procedural rule and not an
employment practice under 5 C.F.R. § 300.101. The one-
year rule does not have a substantive or merits-based
effect on Mr. Chadwell’s eligibility for selection to an open
ALJ position. Rather, it is a reasonable limitation that
allows OPM to provide a broader list of eligible candidates
to agencies seeking referrals for open ALJ positions.
The Board’s decision dismissing Mr. Chadwell’s ap-
peal for lack of jurisdiction is affirmed.
3 Our holding does not mean that every agency
rule that excludes someone from initial appointment is
necessarily an employment practice. We hold only that
an agency rule is not an employment practice when the
rule does not affect an applicant’s consideration for initial
appointment. See 5 C.F.R. § 300.101.

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COSTS
Each party shall bear its own costs.
AFFIRMED

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