U.S. Merit Systems Protection Board 
Case Report for March 8, 2013

Change Font Size: + + + + +

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:  Steven J. Launer
Agency:  Department of the Air Force
Decision Number:  2013 MSPB 18
Docket Number:  DE-3330-12-0100-I-1
Issuance Date:  March 1, 2013
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights/VEOA
 - Category Ranking

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this VEOA appeal.  The appellant alleged that his veterans' preference rights were violated in connection with his application for the competitive service position of Engineering Equipment Operator.  The agency accepted applications through an automated system administered by OPM.  OPM used category ranking as authorized by 5 U.S.C. 3319 in lieu of a traditional examination and gave the appellant a score of 89, which placed him in the Well Qualified category.  A score of 90 or above would have placed him in the Best Qualified category.  OPM then referred 11 candidates deemed Best Qualified to the selecting official, who selected several candidates, one of whom was not a veteran.  When one of the Best Qualified selectees declined the position, the agency requested a second certificate.  The appellant's name was the only one on the second certificate, reflecting his position at the top of the Well Qualified candidates, and he was selected.  In his Board appeal, the appellant contended that he had been improperly scored and categorized, and that he was harmed by the error because his "expected start date" would have been earlier had the selection process been done properly.  In denying corrective action, the administrative judge found that OPM properly credited the appellant's experience and appears to have found that the appellant's score of 89 was arrived at after "the addition of his 10-point veterans' preference."  

Holdings:  The Board affirmed the initial decision as modified, still denying the appellant's request for corrective action:

1.  In a traditional competitive examination, preference-eligibles have additional points added to their passing scores, the appointing authority must make a selection from the highest 3 eligibles, and must justify a decision to pass over a preference eligible in order to select a non-preference eligible.

2.  Under the alternative "category ranking" process set forth in 5 U.S.C. 3319, an examining agency defines two or more quality categories into which applicants are placed.  A preference eligible with a compensable service-connected disability of 10% or more must be listed in the highest quality category; within a category, preference eligible veterans are listed ahead of non-preference eligibles, and an agency may not select a non-preference eligible ahead of a preference eligible in the same category unless it seeks and receives approval for a pass over.  An agency may assign numerical scores for purposes of placing applicants in categories, but veterans' preference points are not added to such scores.

3. The agency afforded the appellant the appropriate veterans' preference under the category ranking process of section 3319.  The appellant did not claim in his application that he had a compensable service-connected disability of 10% or more.  Accordingly, the agency cannot be found to have violated his rights for failing to treat him as if he had that status.  



Appellant:  James G. Evans
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 19
Docket Numbers:  DE-0752-11-0337-I-1; DE-4324-12-0123-I-1
Issuance Date:  March 1, 2013
Appeal Types:  Adverse Action by Agency; USERRA
Action Type:  Constructive Adverse Action

Jurisdiction - " Employee" 
Veterans' Rights/USERRA

    The appellant petitioned for review of an initial decision that dismissed his involuntary disability retirement claim for lack of jurisdiction and denied corrective action under USERRA.  The appellant, who was a Nurse with the Veterans Health Administration, claimed that the agency forced him to take disability retirement in November 2009 by providing misleading information concerning the amount of his disability retirement payments and by creating a hostile work environment.  He asserted that the agency's actions were discriminatory and in retaliation for EEO activity, and that he was discriminated against because of his military service.  The administrative judge found that the appellant made a nonfrivolous allegation of involuntary disability retirement and held a hearing on both that claim and the USERRA claim.  The judge dismissed the involuntary disability retirement claim for lack of jurisdiction, finding that the appellant failed to establish by preponderant evidence that he was forced to retire due to misleading statements by the agency's human resources office or that his retirement was otherwise coerced.  The judge denied on the merits the appellant's request for corrective action under USERRA because the appellant failed to establish that the agency's actions in allegedly coercing his retirement were influenced by his veteran status.  Finally, the judge ruled that, in the absence of an appealable adverse action, she could not consider the appellant's claim of disability discrimination.  

Holdings:  The Board vacated the judge's findings concerning the appellant's involuntary disability retirement claim, dismissing that claim for lack of jurisdiction on the basis that he was not an "employee" with adverse action appeal rights, and affirmed the judge's denial of corrective action under USERRA:

1. The Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal and may raise the issue of its own jurisdiction sua sponte at any time.  
As the judge noted, the Board may lack jurisdiction over the appellant's involuntary disability retirement claim because he appeared to be appointed under 38 U.S.C. 7401(1) and therefore was not an "employee" for the purposes of 5 U.S.C. chapter 75 appeal rights.  

2.  In response to a Show Cause Order issued by the Clerk of the Board, the agency submitted evidence that the appellant was appointed under 38 U.S.C. 7401(1).  A person appointed under the authority of that section is excluded from coverage under subchapter II of chapter 75 and does not have a right to appeal chapter 75 adverse actions to the Board.  Because the appellant is not a covered "employee" under chapter 75, he may not appeal an alleged involuntary disability retirement as an adverse action.

3. Because the appellant failed to demonstrate that his military status was a motivating or substantial factor in the agency's action, denial of his request for corrective action under USERRA was appropriate.

4. The Board rejected the appellant's claim that he should be allowed review of the rejection of his disability discrimination claim in federal district court.  As the Board recently ruled, an individual who receives a final Board decision in a mixed case may seek such review, but this is not a mixed case and the appellant may seek review only in the U.S. Court of Appeals for the Federal Circuit.

    In a brief concurring opinion, Vice Chairman Wagner expressed the view that the best course of action in a case such as this is to notify appellants that they may have a right to judicial review in district court.  



Appellant:  Jesse M. Washburn
Agency:  Department of the Air Force
Decision Number:  2013 MSPB 20
Docket Number:  DE-3330-12-0147-I-1
Issuance Date:  March 4, 2013
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights/VEOA
 - Right to Compete
 - Individuals Outside Agency's Workforce
Mootness

    The agency petitioned for review of an initial decision that found that the agency denied the appellant his right to compete for an appointment in violation of 5 U.S.C. 3304(f)(1).  The appellant retired from the Air Force at the rank of Major, under honorable conditions, after 20 years of active service.  He subsequently applied for a competitive service position with the Department of the Air Force.  The position was to be within the United States Strategic Command (STRATCOM) a Department of Defense (DOD) unified combatant command that includes elements of the Air Force, the Army, the Navy, and the Marine Corps.  The vacancy announcement stated that applications would be accepted form "Air Force Employee[s]" and [DOD] Transfer (Army, Navy, DFAS, etc. - Excluding Air Force)."  The Department of the Air Force did not refer the appellant to the selecting official because it determined he was ineligible on the basis that was not a current DOD employee.  It explained that the job announcement was internal and therefore "not open to applicants with a VEOA eligibility."  The issue before the Board was whether was entitled to compete for the position under 5 U.S.C. 3304(f)(1), which provides that "[p]reference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures."

     In finding that the agency denied the appellant his right to compete, the administrative judge considered the agency's argument that the announcement was internal because it was limited to the defense agencies whose employees comprise the STRATCOM workforce, but found that the Department of the Air Force was the agency for purposes of the selection process and that the location of the position within the command structure of STRATCOM was immaterial.  In its petition for review, the agency contended that this determination was incorrect.  It also argued for the first time that the appeal is moot because it has already afforded the appellant an opportunity to compete for the position.  

Holding:  The Board affirmed the initial decision's determination that the agency violated the appellant's right to compete, but remanded for further adjudication on whether the appellant is now moot:

1. The initial decision correctly determined that the Department of the Air Force violated the appellant's right to compete because it accepted applications from individuals outside its own workforce.  The Board rejected the agency's argument that the key to this case is the definition of the term "workforce" and that the term should be defined in light of the pan-DOD character of STRATCOM rather than solely by the Air Force component, which was only the conduit for the appointment.  The plain language of the statute defines the scope of the "workforce" as that of "the agency making the announcement."  The agency making the announcement was the Department of the Air Force.  Because the Department of the Air Force was the relevant agency and its announcement accepted applications from individuals outside of the Air Force's workforce, qualified preference eligibles and veterans had a right to compete for the position.  

2.  A remand is necessary to determine if the appeal is moot.

a. An appeal will be dismissed as moot when, by virtue of an intervening event, the Board cannot grant any effectual relief in favor of an appellant, as when the appellant obtained all the relief he could have obtained had he prevailed before the Board.  Mootness can arise at any stage of litigation.

b. On petition for review, the agency contends that the appellant was afforded an opportunity to compete for the position in question prior to the close of the record below.  Although the agency submitted some evidence to support this contention, the Board could not determine on the current record whether the agency actually allowed the appellant to compete in the same selection process that it would have been required to conduct pursuant to a Board order.  A remand is therefore necessary.


COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Tsungu v. Merit Systems Protection Board, No. 2012-3155 (March 7, 2013) (MSPB Docket No. DC-3443-12-0310-I-1) (affirming the Board's decision, which dismissed an appeal of a reassignment for lack of jurisdiction)
     

U.S. Merit Systems Protection Board | Case Reports