Case: 20-1842 Document: 64 Page: 1 Filed: 09/26/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DEAN SENECA, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Intervenor ______________________

2020-1842 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0731-16-0470-I-1. ______________________

Decided: September 26, 2022 ______________________

DENNIS GRADY CHAPPABITTY, Elk Grove, CA, argued for petitioner.

DEANNA SCHABACKER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, argued for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH. Case: 20-1842 Document: 64 Page: 2 Filed: 09/26/2022

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MATTHEW JUDE CARHART, Civil Division, Commercial Litigation Branch, United States Department of Justice, Washington, DC, argued for intervenor. Also represented by JEFFREY B. CLARK, SR., ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before PROST, TARANTO, and STOLL, Circuit Judges. TARANTO, Circuit Judge. Dean Seneca, an employee of the Centers for Disease Control and Prevention (CDC), which is a component of the Department of Health and Human Services (HHS), applied for a higher level position at another HHS component, the National Institutes of Health (NIH). NIH sent him a letter stating that it had selected him for the position, with ap- pointment to take effect a month later, but within a week of sending that letter, NIH rescinded the promotion offer, well before the effective date of the appointment. Mr. Sen- eca appealed the promotion rescission to the Merit Systems Protection Board. The Board dismissed Mr. Seneca’s ap- peal, determining that it lacked jurisdiction to review NIH’s action, which it concluded was a non-selection for a specific position and not a reviewable “suitability action” under 5 C.F.R. pt. 731. Seneca v. Department of Health and Human Services, No. DC-0731-16-0470-I-1, 2016 WL 4088357 (M.S.P.B. July 26, 2016) (Board Opinion) (hereaf- ter cited with page numbers shown at Appx. 1–9). We af- firm. I On March 3, 2016, Mr. Seneca received a letter from NIH “confirm[ing]” his promotion to the position of Health Science Policy Analyst, “with an effective date of April 3, 2016.” Supp. App’x (S.A.) 77. On March 8, 2016, however, Mr. Seneca received another letter from NIH, notifying him that the promotion offer was rescinded due to “information received.” S.A. 78. Case: 20-1842 Document: 64 Page: 3 Filed: 09/26/2022

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Mr. Seneca appealed the rescission to the Board. He alleged that the rescission by HHS (through NIH) consti- tuted a negative “suitability action”—based, he said, on an improper “constructive” negative suitability determina- tion—which was appealable under the grant to the Board of jurisdiction to review “a suitability action.” 5 C.F.R. § 731.501(a); see also id. § 1201.3(a)(9) (jurisdiction to re- view “suitability action”). Although Mr. Seneca also al- leged that the NIH promotion rescission violated certain other statutory and constitutional rights of his, those alle- gations of wrong are not asserted to provide an independ- ent basis of Board jurisdiction: It is undisputed before us that the Board’s jurisdiction over Mr. Seneca’s appeal de- pends on whether the NIH action was a suitability action appealable under 5 C.F.R. § 731.501(a). HHS moved to dismiss the appeal for lack of jurisdic- tion, arguing that NIH’s promotion rescission was not a suitability action (indeed, not based on a determination of Mr. Seneca’s suitability for federal employment) and, in particular, that it was a non-selection for a specific posi- tion, which, under 5 C.F.R. § 731.203(b), is “not a suitabil- ity action,” id. (emphasis in original). The administrative judge assigned to the case stayed discovery deadlines and ordered Mr. Seneca to address the Board’s jurisdiction by furnishing “evidence and argument amounting to a non- frivolous allegation” to support the asserted basis of juris- diction. S.A. 30; see also S.A. 60–61. In response, Mr. Seneca asserted that the promotion rescission was a “[c]an- cellation of eligibility,” which is one of the “suitability ac- tion[s]” listed in § 731.203(a). On July 26, 2016, the administrative judge, rejecting Mr. Seneca’s assertion, dismissed Mr. Seneca’s appeal without a hearing. Board Opinion at 3–4. To establish ju- risdiction under § 731.501(a), the administrative judge stated, the promotion rescission needed to come within § 731.203(a), which defines “suitability action” as a cancel- lation of eligibility, removal, cancellation of reinstatement Case: 20-1842 Document: 64 Page: 4 Filed: 09/26/2022

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eligibility, or debarment, and also needed to fall outside § 731.203(b), which excludes a non-selection for a specific position from the category of suitability actions. The ad- ministrative judge, without repeating the nonfrivolous-al- legation standard he had recited earlier, concluded that the promotion rescission was a non-selection for a specific po- sition, before the proposed appointment ever occurred, and was not a suitability action, leaving the Board without ju- risdiction here. Board Opinion at 3. The administrative judge’s decision became the final decision of the Board on March 27, 2020, after Mr. Seneca was permitted by the Clerk of the Board to withdraw his request for the full Board to review the administrative judge’s decision. Mr. Seneca timely appealed within the allowed 60 days. 5 U.S.C. § 7703(b)(1)(A). We have juris- diction under 28 U.S.C. § 1295(a)(9). II Mr. Seneca challenges the Board’s determination that it lacked jurisdiction and its stay of discovery before decid- ing the jurisdictional issue. We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regula- tion having been followed; or (3) unsupported by substantial evidence . . . .” 5 U.S.C. § 7703(c). We review the Board’s jurisdictional ruling de novo, Stoyanov v. De- partment of Navy, 474 F.3d 1377, 1379 (Fed. Cir. 2007), and the Board’s discovery ruling for an abuse of discretion, Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988). A An employee appealing to the Board generally has the burden of establishing, by a preponderance of the evidence, that the Board has jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A); Stoyanov, 474 F.3d at 1379. At the Case: 20-1842 Document: 64 Page: 5 Filed: 09/26/2022

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threshold, the employee must make “non-frivolous allega- tions that, if proven, could establish the Board’s jurisdic- tion,” Garcia v. Department of Homeland Security, 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc), which requires a “plausible” allegation of the elements material under the asserted jurisdictional standard, 5 C.F.R. § 1201.4(s)(2); see Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020). Without such allegations, dis- missal without a hearing is appropriate. Garcia, 437 F.3d at 1325. The Board does not have plenary appellate jurisdiction over personnel actions. Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012). Its jurisdic- tion is limited to actions made appealable to it by law, rule, or regulation. 5 U.S.C. § 7701(a). Here, only one basis for Board jurisdiction is asserted. Under regulations promulgated by the Office of Person- nel Management (OPM), the Board has jurisdiction to re- view a “suitability action” taken against a person by an agency with OPM-delegated authority. 5 C.F.R. § 731.501(a); see id. § 1201.3(a)(9). The definitional regu- lation first states that, for purposes of 5 C.F.R. pt. 731, “a suitability action is one or more of the following: (1) Can- cellation of eligibility; (2) Removal; (3) Cancellation of rein- statement eligibility; and (4) Debarment.” Id. § 731.203(a). It immediately adds, however: A non-selection, or cancellation of eligibility for a specific position based on an objection to an eligible or pass over of a preference eligible under 5 CFR 332.406, is not a suitability action even if it is based on reasons set forth in § 731.202. Id. § 731.203(b) (emphasis in original). The referred-to § 731.202 identifies the “[c]riteria for making suitability determinations,” which govern the determination on which a “suitability action” is to be based. See id. § 731.203(c) (“A suitability action may be taken against an applicant or an Case: 20-1842 Document: 64 Page: 6 Filed: 09/26/2022

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appointee when OPM or an agency exercising delegated au- thority under this part finds that the applicant or appoin- tee is unsuitable for the reasons cited in § 731.202, subject to the agency limitations of § 731.103(g).”). It is sufficient to affirm the Board’s dismissal for want of jurisdiction that this case comes within the express ex- clusion from what constitutes a “suitability action” stated in § 731.203(b) under our precedent. We do not address whether NIH’s action also falls outside the list of “suitabil- ity actions” in § 731.203(a), considered separately from § 731.203(b). Mr. Seneca, in his brief to us, has not argued that the Board mistakenly relied on § 731.203(b). In Ricci v. Merit Systems Protection Board, 953 F.3d 753, 757 (Fed. Cir. 2020), we held that a revocation of a tentative offer of employment before the offered appoint- ment took effect was a non-selection for a vacant position that came within § 731.203(b), which we read as excluding a “non-selection . . . for a specific position” from the scope of “suitability action.” That holding reflects the subsec- tion’s history as well as language. In 2008, OPM amended its preexisting regulations on suitability actions by, among other things, both removing “denial of appointment” from the list of “suitability actions” in § 731.203(a) and adding what is now § 731.203(b). See Suitability, 73 Fed. Reg. 20149, 20150–51 (OPM Final Rule, Apr. 15, 2008) (Final Rule); compare 5 C.F.R. § 731.203 (2007), with 73 Fed. Reg. at 20157 (amended regulation, matching current form as relevant here). In proposing the changes, OPM explained that its changes would “remove ‘denial of appointment’ as a suitability action, as currently defined in § 731.203” and “confirm that a non-selection for a specific position based on reasons set forth in this part is not a suitability action.” Suitability, 72 Fed. Reg. 2203, 2203 (OPM Proposed Rule, Jan. 18, 2007). The Board concluded that the exclusion stated in § 731.203(b) applies to this case. The key question for Case: 20-1842 Document: 64 Page: 7 Filed: 09/26/2022

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application of that subsection on the motion to dismiss in this case is whether Mr. Seneca, through his evidence and argument, made a nonfrivolous allegation that the scope of NIH’s action went beyond “non-selection” of Mr. Seneca for the “specific position” at issue—that some broader action was taken. Mr. Seneca has not shown that the Board erred in answering that question “no.” 1 The rescission occurred before an appointment had taken effect. The NIH action was not something other than a non-selection just because it was made on second rather than first thought or because the initial selection (unlike the one in Ricci) was not expressly tentative. And, cru- cially, Mr. Seneca has identified no plausible basis, in the materials considered by the Board as constituting his alle- gations, for viewing the NIH action as broader in scope than simply a non-selection for the specific position. It makes no difference whether, as Mr. Seneca sug- gests, NIH’s action stemmed from a determination that he was unsuitable for reasons that could have supported a “suitability action.” As noted above, § 731.203(b) says that a non-selection as described is excluded from being a “suit- ability action” even if it was based on the same criteria that can be used to support a negative suitability determina- tion, see 5 C.F.R. § 731.202, to give rise to one of the “suit- ability actions” listed in § 731.203(a). Relatedly, nor would it make a difference if NIH’s action, though limited to a

1 Mr. Seneca does not object in this court to the Board’s failure to repeat the nonfrivolous-allegation stand- ard in its ruling on the dismissal motion or to the Board’s consideration of the invited and submitted evidence in that ruling. In this circumstance, we treat the Board as having concluded that Mr. Seneca’s submissions did not include or add up to a plausible allegation of the scope of the NIH’s action (something more than a non-selection for a specific position) essential to escaping § 731.203(b). Case: 20-1842 Document: 64 Page: 8 Filed: 09/26/2022

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non-selection for a specific position, could be characterized as a “constructive” suitability action. Before 2008, the Board had found jurisdiction over such a “constructive” suitability action, see Edwards v. Department of Justice, 87 M.S.P.R. 518, 521–24 (2001), but as we have recognized, OPM’s 2008 regulatory change rejected such a basis for Board jurisdiction, see Final Rule, 73 Fed. Reg. at 20152– 53 (characterizing Edwards as an “incorrect reading of the authority that OPM conferred” on the Board and “agreeing that the proposed change would overrule Edwards”); Ricci, 953 F.3d at 759 (“OPM specifically rejected Edwards’ hold- ing that the board can exercise jurisdiction over ‘construc- tive’ suitability actions . . . .”). In short, under Ricci, NIH’s action comes within § 731.203(b) and therefore is “not a suitability action” re- viewable by the Board. For that reason, Mr. Seneca did not make a nonfrivolous allegation that the Board had jurisdic- tion over his appeal. B Mr. Seneca asserts that the Board’s stay of discovery was a harmful error because it deprived him of his right to fairly present his case for jurisdiction. “Procedural matters relative to discovery and evidentiary issues fall within the sound discretion of the board and its officials.” Curtin, 846 F.2d at 1378; see 5 C.F.R. §§ 1201.71–.72. For Mr. Seneca to prevail, moreover, any error had to have “caused sub- stantial harm or prejudice to his rights which could have affected the outcome of the case.” Curtin, 846 F.2d at 1379. We cannot so find here. Mr. Seneca does not argue to us that discovery would have turned up evidence that the NIH action was actually of broader scope than non-selection for the specific position. Rather, he argues only that he should have been given dis- covery to uncover the specifics of the information that mo- tivated the promotion rescission. But Mr. Seneca has not explained how the content of the “information received” by Case: 20-1842 Document: 64 Page: 9 Filed: 09/26/2022

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the agency could affect anything but the reasons for NIH’s action. And under § 731.203(b), the reasons for the agency action are a quite separate matter from the scope of the action taken: An action limited to a non-selection for a spe- cific position remains unreviewable even if it was taken for reasons that would support a negative suitability determi- nation that could be used to take a broader action qualify- ing as a reviewable “suitability action.” Thus, even if Mr. Seneca had access through discovery to the “information received” by NIH and the information was related to any of the suitability determination criteria set out in 5 C.F.R. § 731.202, the outcome of his appeal to the Board would be the same: dismissal for lack of Board jurisdiction. As a re- sult, we see no error in the administrative judge’s stay of discovery in the first place and in any event no basis for finding any error to be harmful. III For the foregoing reasons, we affirm the decision of the Board. The parties shall bear their own costs. AFFIRMED