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` NOTE: This disposition is nonprecedential.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.
`
`
`

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`Case: 20-1842 Document: 64 Page: 2 Filed: 09/26/2022
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`SENECA v. MSPB
`
` 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`of sending that letter, NIH rescinded the promotion offer,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.
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`SENECA v. MSPB
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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
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`SENECA v. MSPB
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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
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`SENECA v. MSPB
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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
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`SENECA v. MSPB
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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
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`SENECA v. MSPB
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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).
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`SENECA v. MSPB
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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
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`SENECA v. MSPB
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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
`
`