Case: 25-1157   Document: 52     Page: 1    Filed: 11/04/2025




        NOTE: This disposition is nonprecedential.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
                 ______________________

    LIBBY A. DEMERY, Clinton, MD, pro se.

     KELLY WINSHIP, Office of the General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by ALLISON JANE BOYLE,
 KATHERINE MICHELLE SMITH.

    ELINOR JOUNG KIM, Commercial Litigation Branch,
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 2                                          DEMERY v. MSPB




 Civil Division, United States Department of Justice, Wash-
 ington, DC, for intervenor. Also represented by STEVEN
 JOHN GILLINGHAM, PATRICIA M. MCCARTHY, BRETT
 SHUMATE.
                   ______________________

     Before MOORE, Chief Judge, HUGHES and STOLL, Circuit
                           Judges.
 PER 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, 

,
 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 

 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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 4                                             DEMERY v. MSPB




 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., 

 (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 

(a)(9). 6 See 

(b); Harris v. Sec. & Exch. Comm’n, 

,
 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.” 

(c). We review the Board’s conclusion that it lacks
 jurisdiction de novo. Bryant v. Merit Sys. Prot. Bd.,
 

 (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., 

, 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., 

, 1011 (Fed. Cir. 2011); cf.
 

(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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 6                                             DEMERY v. MSPB




                              III
     The Board can hear matters over “which it has been
 given jurisdiction by law, rule, or regulation.” 

(a). Accordingly, the Board has jurisdiction over
 several enumerated claims, such as “[a]dverse actions” and
 “[e]mployment        practices”     appeals.      

(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., 

 (Fed. Cir.
 1998). Claims of unlawful conduct during the employment
 selection process must therefore ordinarily be brought in
 other forums. 

 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., 

 (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,
 

; see also Brodt, 

.
     Ms. Demery’s argument about improper personnel
 practices also cannot be brought without an “otherwise ap-
 pealable adverse action.” Brodt, 

. 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 

. 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 

.
                               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
 

. 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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 8                                            DEMERY v. MSPB




 employment practices, and (2) that OPM is involved in the
 administration of those practices.” Prewitt, 

. 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 

 and 3318,
 which she believes constitutes a violation of employment
 practices under Lackhouse v. Merit Sys. Prot. Bd. (Lack-
 house I), 

 (Fed. Cir. 1984) and Lackhouse v.
 Merit Sys. Prot. Bd. (Lackhouse II), 

 (Fed. Cir.
 1985). Pet. Br. 3–4, 7 (“There is no question of whether
 

 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,
 

; Lackhouse II, 

 & 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, 

. We have held
 that “OPM’s involvement in the selection process must be
 significant,” to satisfy the second requirement. 

.
     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                                             

, 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.