Burroughs v. Office of Personnel Management

89 F. App'x 699
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 2, 2004
DocketNo. 03-3285
StatusPublished
Cited by3 cases

This text of 89 F. App'x 699 (Burroughs v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burroughs v. Office of Personnel Management, 89 F. App'x 699 (Fed. Cir. 2004).

Opinion

PER CURIAM.

Milo D. Burroughs (“Burroughs”) appeals a July 1, 2003 final decision of the Merit Systems Protection Board (“Board”), Burroughs v. Office of Pers. Mgmt., 94 M.S.P.R. 315 (2003), (“Burroughs IF), ruling that he had failed to state a claim, and therefore denying his petition for review of the Board’s September 6, 2002 initial decision dismissing his appeal from a determination by the Department of Transportation, Federal Aviation Administration (“FAA”) that he was not qualified for certain positions for which he had applied. Because the Board properly determined that Burroughs had failed to state a claim, we affirm.

BACKGROUND

This case marks the second time that Burroughs has brought the FAA’s decision not to hire him before this court. See Burroughs v. Merit Sys. Prot. Bd., 73 Fed.Appx. 415 (Fed.Cir.2003) (“Burroughs /”). The operative factual background of Burroughs’s claims remains unchanged. In 2002, Burroughs applied for four Aerospace Engineer positions in the FAA’s Renton, Washington office. That office’s Program Management Specialist informed Burroughs that she found him not qualified for the four positions. Burroughs appealed the disqualification finding. The Manager of the Human Resources Division of that office also found Burroughs unqualified for any of the four positions. Id. at 415.

Burroughs characterized the FAA’s disqualification finding as an employment practice appealable to the Board under 5 C.F.R. Part 300, and appealed the finding to the Board. The Board’s Administrative Judge issued an order directing Burroughs to show cause why his appeal should not be dismissed for lack of jurisdiction. Burroughs filed a response and asserted as an additional basis for jurisdiction that the agency’s disqualification finding was an adverse suitability determination appealable to the Board under 5 C.F.R. Part 731. After considering Burroughs’s response, the Administrative Judge granted the FAA’s motion to dismiss the appeal for lack of jurisdiction. Burroughs filed a petition for review with the full Board. The full Board then adopted the Administrative Judge’s position as its final decision, and denied Burroughs’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115. Burroughs I, 73 Fed.Appx. at 416. He appealed to this court, and we affirmed. Id.

One of the arguments that Burroughs forwarded in his petition for review by the Board, however, amounted to a request for a review of Office of Personnel Management (“OPM”) regulations. The Clerk of the Board docketed that matter separately, as a request for regulation review. That separate claim forms the basis of Burroughs’s instant appeal. On July 1, [701]*7012003, while our ruling on Burroughs’s appeal of the Board’s earlier dismissal was still pending, the Board issued its final decision in the instant matter, ruling that Burroughs had failed to state a claim under 5 U.S.C. § 1204(f)- Burroughs timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or not supported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). The Board’s dismissal of Burroughs’s appeal for failure to state a claim upon which relief can be granted is a question of law. See W. Co. of N. Am. v. United States, 323 F.3d 1024, 1029 (Fed.Cir.2003). We review the Board’s rulings on questions of law without deference. See Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed.Cir.2000).

The Board’s jurisdiction is limited to those matters conferred on it by applicable law or regulation. 5 U.S.C. § 7701(a) (2000); Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed.Cir.1985). The Board has original jurisdiction to review rules and regulations issued by the Office of Personnel Management (OPM). 5 U.S.C. § 1204(f)(1). In exercising that jurisdiction, the Board is authorized to declare OPM rules and regulations invalid if their implementation requires agencies to commit prohibited personnel practices, as defined in 5 U.S.C. § 2302(b). Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886-87 (Fed.Cir.1998).

The Board’s analysis was correct. According to Burroughs, who is 73 years old, the FAA’s Renton office — alone among FAA offices — requires applicants to complete a “suitability form” requesting that they provide their date of birth as part of the application process. Burroughs argues that an applicant should not be required to provide his age until after a job offer has been made. He asserts that the request for his date of birth as part of the application process constitutes a prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(B), which prohibits age discrimination in “any personnel action ... taken against any employee or applicant for employment.”

Burroughs argues that OPM failed to maintain oversight and standardization as required by 5 U.S.C. § 1104 and 5 C.F.R. § 250.102: “The bottom line is that OPM’s failure to implement is the direct cause of prohibited personnel practices and does not ensure standards, merit system principles, compliance with civil service laws, rules and regulations as mandated by 5 USC/CFR [sic].” Burroughs II, 94 M.S.P.R. at 318. Burroughs, however, never did specify — -either below or on appeal — precisely which regulation’s application he was challenging, though he did mention 5 C.F.R. § 250.102 in his briefs to the Board. That regulation, in its entirety, reads:

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89 F. App'x 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burroughs-v-office-of-personnel-management-cafc-2004.