Steven J. Elgin v. Merit Systems Protection Board

17 F.3d 1444, 1994 U.S. App. LEXIS 14353, 1994 WL 10616

• Court: Court of Appeals for the Federal Circuit
• Decided: January 18, 1994
• Docket: 93-3520
• Status: Published

Opinion

17 F.3d 1444
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Steven J. ELGIN, Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 93-3520.

United States Court of Appeals, Federal Circuit.

Jan. 18, 1994.

Before RICH, ARCHER and LOURIE, Circuit Judges.

PER CURIAM.

DECISION

Steven J. Elgin petitions for review of the initial decision of the Merit Systems Protection Board (board), Docket No. DC3443930226-I-1 (Mar. 23, 1993), which became final when the full board denied review on July 16, 1993. The board dismissed his appeal for lack of jurisdiction. We affirm.

DISCUSSION

This court must affirm the decision of the board unless it finds that the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without following the procedures required by law, rule, or regulation; or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c). The jurisdiction of the board is limited to those actions which are made appealable to it by law, rule, or regulation. Dowd v. United States, 713 F.2d 720, his appeal. Minor v. Merit Systems Protection Board, 819 F.2d 280, 282 (Fed.Cir.1987); 5 C.F.R. Sec. 1201.56(a)(2)(i) (1993).

Elgin, a Supervisory Police Officer for the Bureau of Engraving and Printing, appealed to the board his nonselection for promotion to the position of Lieutenant. Because an agency's failure to select an applicant for a vacant position is not an action appealable to the board, the board properly dismissed the appeal. See 5 C.F.R. Sec. 1201.3 (1993); Diamond v. United States Postal Service, 51 M.S.P.R. 448, 450 (1991), aff'd, 972 F.2d 1353 (Fed.Cir.1992) (Table).

We have considered Elgin's remaining arguments and find them to be without merit.