United States Merit Systems Protection Board

Case Report for March 12, 2010


Note:
These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


BOARD DECISIONS

 

Appellant: Curt L. Wheeler

Agency: Department of Defense

Decision Number: 2010 MSPB 47

Docket Number: CH-3443-08-0337-I-2

Issuance Date: March 5, 2010

Jurisdiction
USERRA/VEOA/Veterans’ Rights
Mootness

The appellant filed a petition for review (PFR) of an initial decision that dismissed for lack of jurisdiction his appeal under the Veterans Employment Opportunities Act of 1998 (VEOA). The appellant, a preference eligible with a 30% service-connected disability, applied for a Supervisory Accountant position, but was notified that his application was not referred to the selecting official. He filed a complaint with the Department of Labor (DOL), asserting that his rights as a veteran had been violated. DOL concluded that the agency violated the appellant’s rights by failing to refer him to the selecting official and indicated that the appropriate remedy was to reconstruct the selection process. After the appellant filed a timely appeal with the Board, the agency reconstructed the selection process. As she had done before, the selecting official referred the list to a panel that rated and scored the candidates. Based on the scores assigned to each candidate, the panel determined that the appellant would not have been on the list of 8 candidates that the panel originally recommended to the selecting official, and the selecting official confirmed her original selection for the position.

In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant had failed to meet the jurisdictional requirement of exhausting his remedy with DOL before filing a Board appeal. The judge found in this regard that the appellant’s DOL complaint was based on the agency’s failure to refer his application to the selecting official, and that the appellant had not exhausted his DOL remedy with respect to his later contention that the reconstructed selection process was improper. The administrative judge also found that the appeal was rendered moot because the agency reconstructed the selection process and referred the appellant’s application to the selecting official while his Board appeal was pending.

Holdings: The Board granted the appellant’s PFR, and affirmed the initial decision as modified, dismissing the appeal for lack of jurisdiction on the ground that the appeal is moot:

1. The position in question was filled via merit promotion action, not open competitive examination, and the appellant argued that the agency violated his right to compete under merit promotion procedures pursuant to 5 U.S.C.  3304(f).

2. The appellant established VEOA jurisdiction over his right-to-compete claim by exhausting his remedy with DOL and making nonfrivolous allegations that he is a veteran described in 5 U.S.C.  3304(f)(1), that the agency denied him the right to compete under merit promotion procedures for a vacant position for which the agency accepted applications from outside its own workforce, and the denial occurred after the effective date of the relevant amendment to  3304.

3. In finding that the appellant exhausted his DOD remedy, the Board noted that VEOA allegations must be broadly construed and that the appellant’s DOL complaint essentially alleged that the agency violated his right to compete in connection with the vacancy announcement in question.

4. The mootness doctrine is jurisdictional in nature. A case is moot when the issues are no longer “live” or the parties lack a legally cognizable interest in the outcome of a case. An appeal will be dismissed as moot when, by virtue of an intervening event, the Board cannot grant any effectual relief, which will be true when the appellant has obtained all of the relief he could have obtained had he prevailed before the Board.

5. The administrative judge erred in finding, without addressing the appellant’s arguments regarding the accuracy of the reconstructed selection process, that the appellant’s claim that the agency violated his rights had been rendered moot.

6. The Board found that, because the agency applied its scoring method consistently to all external candidates, regardless of veteran status, the appellant failed to demonstrate that the agency’s scoring method in the reconstructed hiring process violated his right to compete under  3304(f)(1).

7. Because the appellant’s assertions that the agency violated his right to compete during the reconstructed hiring process are without merit, the appellant has obtained all of the relief he could have obtained had he prevailed on his VEOA claim before the Board. The appeal is therefore moot and must be dismissed for lack of jurisdiction.

Appellant: Orlando Jones

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 48

Docket Number: DE-3330-09-0399-I-1

Issuance Date: March 9, 2010

Appeal Type: Veterans Employment Opportunities Act

Jurisdiction
USERRA/VEOA/Veterans’ Rights
Whistleblower Protection Act

The appellant, a preference-eligible GS-12 employee, sought corrective action based on his allegations that the agency violated VEOA and engaged in discrimination prohibited by 5 U.S.C.  2302(b)(1) when it did not select him for 3 positions. In dismissing the appeal for lack of jurisdiction, the administrative judge found that: (1) The appellant did not present a nonfrivolous allegation of a violation with respect to the cancelled announcements at issue, because canceling a vacancy announcement does not violate a veteran’s substantive rights; (2) the appellant did not show that the agency violated his substantive rights when it allowed a former incumbent of one position to return to it through a non-competitive appointment; (3) the appellant did not show that the agency violated his rights to the May 2009 vacancy announcement because the appellant did not apply for this position and because he did not exhaust his DOL remedy with respect to this matter; and (4) the Board lacks jurisdiction over the appellant’s allegations of discrimination and other prohibited personnel practices in the context of a VEOA appeal.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, affirmed the initial decision in part, reversed it in part, and forwarded a post-PFR pleading by the appellant to the field office for docketing and adjudication as claims under the Whistleblower Protection Act and the Uniformed Services Employment and Reemployment Rights Act:

1. The Board denied the appellant’s PFR because it did not show that the administrative judge committed any procedural or adjudicatory error that affected his substantive rights. The Board reopened the appeal, however, because the judge erred in finding that the Board lacks jurisdiction over some of the appellant’s VEOA claims.

2. With the exception of the May 2009 vacancy announcement, the appellant established jurisdiction by showing that he exhausted his remedy with DOL and made nonfrivolous allegations that he is a covered preference eligible, that the action took place after enactment of VEOA, and that the agency violated his rights under a statute or regulation relating to veterans’ preference. With regard to the last element, an appellant need not state a claim upon which relief can be granted; an allegation, in general terms, that veterans’ preference rights were violated is sufficient.

3. The Board found as a matter of law that the agency did not violate the appellant’s rights under VEOA with respect to the positions for which he applied, in that he was allowed to compete for the positions under 5 U.S.C.  3304(f)(1). The agency accepted the appellant’s applications and considered him for each of the positions, but it decided to cancel the vacancy announcements, and it provided a lawful reason for the cancellation in each instance.

4. With regard to the May 2009 vacancy, the administrative judge correctly found that, in addition to failing to show that the agency violated a veterans’ preference statute or regulation, the appellant also failed to show that he exhausted his remedy with DOL. The administrative judge correctly dismissed this claim for lack of jurisdiction.

5. After the close of the record on PFR, the appellant filed a submission alleging that the agency retaliated against him for disclosing “evidence of illegal or improper hiring practice activities” and for being a Vietnam era U.S. Army veteran. These allegations were forwarded to the Board’s field office for docketing and adjudication under the WPA and USERRA.

Appellant: Eric Smart

Agency: Department of Justice

Decision Number: 2010 MSPB 49

Docket Number: SF-315H-08-0709-B-1

Issuance Date: March 9, 2010

Appeal Type: Termination of Probationers

Timeliness – PFA
Jurisdiction – “Employee”

The appellant petitioned for review of a remand initial decision that dismissed his appeal as untimely filed. After receiving a career appointment in the competitive service, the appellant was terminated in 1991 during his probationary period. The termination letter advised the appellant of his limited right to appeal to the Board as a probationary employee and his right to file an equal employment opportunity (EEO) complaint. The appellant filed an EEO complaint in 1992, and the EEOC affirmed the agency’s final decision in 1994. The appellant filed a Board appeal in 2008, which was dismissed for lack of jurisdiction. On PFR, the Board vacated and remanded, finding that the administrative judge failed to provide the appellant with explicit information as to how he could show that his prior service could be “tacked” to his probationary period so that he meets the definition of an employee under 5 U.S.C.  7511(a)(1)(A)(ii). Smart v. Department of Justice, 111 M.S.P.R. 147 (2009).

On remand, the administrative judge dismissed the appeal as untimely filed, without ruling on the jurisdictional question. In so ruling, the judge found that, even if the appellant did not receive notice of appeal rights at the time of his termination, he should have been aware of his Board appeal rights by June 2, 1993, when the admissibility of the termination notice was stipulated in the EEOC proceeding.

Holdings: The Board granted the appellant’s PFR, vacated the remand initial decision, and remanded the case to the regional office for further adjudication:

1. When an agency takes an appealable action, it must advise an employee of his right to file a Board appeal and the time limit for doing so. When an agency subjects an appellant to an appealable action without notifying him of his Board appeal rights, the appellant need only demonstrate that he was diligent in exercising his Board appeal rights once he learned of them, regardless of whether he was diligent in discovering his appeal rights.

2. The termination notice was limited to advising the appellant of the limited Board appeal rights that a probationary employee has; it did not advise him of the fuller appeal rights that would apply if he was an “employee” within the meaning of 5 U.S.C.  7511. Accordingly, even if the appellant received the termination notice in June 1993, he would have assumed that he was not entitled to file a Board appeal, because his claims were not based on discrimination due to partisan political beliefs or marital status. Whether the agency failed to provide the appellant with proper and complete notice of his appeal rights, and whether such failure would justify a waiver of the time limit for filing a Board appeal, therefore depends on whether the appellant was an “employee” with appeal rights under  7511, an issued that the administrative judge did not address.

3. Where, as here, the issues of the Board’s jurisdiction and the timeliness of the appeal are inextricably intertwined, the administrative judge must first address the jurisdictional issue before addressing the timeliness of the appeal.

4. As noted in the Board’s prior decision, the pertinent jurisdictional issue is whether the appellant has prior service that meets the current continuous service requirement of 5 U.S.C.  7511(a)(1)(A)(ii) or whether his prior service can be “tacked” to his probationary period. The record is still insufficient to resolve that question, so another remand is necessary.

5. The Board rejected the agency’s contention that the the holding in McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002), as to the proper interpretation of 5 U.S.C.  7511, should not be applied in this case. Under applicable Supreme Court precedent, an interpretation of federal law such as that involved in Mccormick “must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate” the court’s announcement of the rule.

COURT DECISIONS

Nonprecedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Desanto v. Office of Personnel Management, No. 2010-3049 (March 5, 2010) (MSPB Docket No. DC-0831-09-0543-I-1) (affirming the Board’s decision, which upheld OPM’s apportionment of a retirement annuity to 2 children pursuant to a qualifying court order)

Roberts v. Office of Personnel Management, No. 2009-3296 (March 5, 2010) (MSPB Docket No. DE-844E-08-0386-I-2) (affirming the Board’s decision, which upheld the denial of the appellant’s application for a disability retirement annuity)

Hawkings v. Social Security Administration, No. 2010-3012 (March 5, 2010) (MSPB Docket No. AT-0752-09-0601-I-1) (affirming the Board’s decision, which upheld the agency’s removal action based on attendance charges)

Cosme v. Department of Veterans Affairs, No. 2009-3189 (March 8, 2010) (MSPB Docket No. NY-0752-09-0012-I-1) (affirming the Board’s decision, which upheld the appellant’s removal on misconduct charges)

Holley v. Merit Systems Protection Board, No. 2010-3016 (March 8, 2010) (MSPB Docket No. AT-0752-09-0463-I-1) (affirming the Board’s decision, which dismissed for lack of jurisdiction the appeal of a Postal employee’s removal)

Chan v. Merit Systems Protection Board, No. 2009-3256 (March 8, 2010) (MSPB Docket No. SF-0752-09-0039-I-1) (affirming without opinion the Board’s decision, which dismissed the appeal for lack of jurisdiction)

Becker v. Department of Veterans Affairs, No. 2010-3037 (March 10, 2010) (MSPB Docket No. NY-4324-09-0141-I-1) (affirming the Board’s decision, which denied a claim for relief under USERRA)