Ziccardi v. Merit Systems Protection Board

66 F. App'x 204

Opinion

PER CURIAM.

John A. Ziccardi seeks review of the June 27, 2002 decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction. Because Ziccardi failed to prove that the action he sought to appeal was within the board’s jurisdiction, we affirm.

A board decision must be affirmed unless it is found to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000).

The board has jurisdiction over prohibited personnel practices as set forth in 5 U.S.C. § 2302(b)(8). Id. § 1221(a). Ziccardi asserts that the Postal Service committed prohibited personnel practices in failing to select him for an associate supervisor position. However, an agency’s failure to select an applicant for a position, with certain exceptions not applicable here, is not a prohibited personnel action and therefore not appealable to the board. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998).