Pecard v. Department of Agriculture , 495 F. App'x 90 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID M. PECARD,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2011-3151
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA3330090730-B-1.
__________________________
Decided: Oct. 26, 2012
___________________________
DAVID M. PECARD, of Phoenix, Arizona, pro se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
BRIAN M. SIMKIN, Assistant Director. Of counsel was
KENT C. KIFFNER, Trial Attorney.
__________________________
PECARD v. AGRICULTURE 2
Before NEWMAN, DYK, and PROST, Circuit Judges.
PER CURIAM.
David M. Pecard (“Pecard”) petitions for review of a
decision of the Merit Systems Protection Board (“Board”).
The Board denied his request for corrective action under
the Veterans Employment Opportunities Act of 1988
(“VEOA”), Pub. L. No. 105-339, 112 Stat. 3182 (codified at
5 U.S.C. § 3330a et seq.). Pecard v. Dep’t of Agric., No.
DA-3330-09-0730-B-1 (M.S.P.B. Mar. 8, 2011) (“Remand
Decision”). We affirm.
BACKGROUND
Petitioner Pecard, a preference eligible veteran, ap-
plied to the Department of Agriculture (“the agency”) for
employment as an Animal Health Technician, Mounted
Patrol Inspector, at the GS-5, -6, -7, and -8 levels. Pecard
submitted applications for seven openings in various
locations, including the Laredo, Texas opening advertised
in vacancy announcement 24-VS-2009-0154 (the “0154
position”). The agency prepared twenty-eight certificates
of eligibles for the openings (one for each position at each
grade level), and tentatively selected Pecard for the 0154
position at the GS-7 level. Shortly thereafter, the agency
found inconsistencies in Pecard’s paperwork, which led
the agency to conclude that Pecard had improperly al-
tered a form submitted with his application. A subse-
quent internet search “revealed several newspaper
articles and a television broadcast that had portrayed
[Pecard] as a con man.” Remand Decision, slip op. at 3.
On August 10, 2009, the agency withdrew Pecard’s tenta-
tive offer of employment for the 0154 position at the GS-7
level.
Saul Garza was subsequently selected for the 0154
position at the GS-6 level. Pecard had applied for the
3 PECARD v. AGRICULTURE
0154 position at the GS-7 level, but not at the GS-6 level,
and Pecard’s name did not appear on the certificate of
eligibles from which Garza was selected. When Garza
was selected, the agency believed him to be a preference
eligible veteran; it later determined that Garza was not
preference eligible, but took no further action because
“none of the preference eligible applicants, including
[Pecard,] were [sic] entitled to lost employment considera-
tion.” Id. at 7.
A hiring agency which objects to a preference eligible
applicant and wishes to instead select a non-preference
eligible may seek to “pass over” the preference eligible
applicant. See 5 U.S.C. § 3318; 5 C.F.R. § 332.406; Re-
cruitment and Selection Through Competitive Examina-
tion, 74 Fed. Reg. 30,459, 30,459 (June 26, 2009). On
August 11, 2009, one day after withdrawing its offer to
Pecard, the agency signed a pass over request based on
the inconsistencies in Pecard’s application materials. The
request was applicable to three vacancies for which Pe-
card had applied (not including the 0154 position). The
request was sustained by the agency on August 13, 2009.
As a result, Pecard was excluded from consideration when
those three vacancies were filled.
Pecard filed a timely complaint with the Department
of Labor, alleging that the agency violated his rights
under the VEOA. When relief was denied, Pecard ap-
pealed to the Board, which has limited statutory jurisdic-
tion to review VEOA claims. See 5 U.S.C. § 3330a(d)(1).
The administrative judge (“AJ”) denied relief, finding no
violation of Pecard’s VEOA rights, and no independent
source of jurisdiction to review his non-selection for the
0154 position. Pecard v. Dep’t of Agric., No. DA-3330-09-
0730-I-1 (M.S.P.B. Jan. 14, 2010). On review, the Board
remanded for clarification of “discrepancies” in the record
as to Pecard’s VEOA claim and the circumstances sur-
PECARD v. AGRICULTURE 4
rounding the pass over request.1 Pecard v. Dep’t of Agric.,
No. DA-3330-09-0730-I-1, 115 M.S.P.R. 31 (M.S.P.B. Sept.
8, 2010). On remand, the AJ again denied relief as to the
0154 position, and additionally upheld the agency’s pass
over authority. Remand Decision, slip op. at 5-6. Pecard
did not request review by the full Board, and the AJ’s
decision became the final decision of the Board on April
12, 2011. This appeal followed. This court has jurisdic-
tion under 28 U.S.C. § 1295(a)(9). During the course of
our consideration, we ordered supplemental briefing.
DISCUSSION
Under 5 U.S.C. § 7703(c), this court’s review of Board
decisions is limited. The Board’s actions, findings, or
conclusions may only be set aside if found to be “(1) arbi-
trary, 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.” Id. We
review questions of law de novo. Augustine v. Dep’t of
Veterans Affairs, 503 F.3d 1362, 1365 (Fed. Cir. 2007).
The VEOA provides preference eligible veterans with
redress for the denial of “various preferences in applying
for civil service positions.” Patterson v. Dep’t of the Inte-
rior, 424 F.3d 1151, 1155 (Fed. Cir. 2005); see also Veter-
ans’ Preference Act of 1944, Pub. L. No. 78-359, 58 Stat.
387 (codified at 5 U.S.C. §§ 2108, 3309-3320) (defining
“preference eligible” and veterans’ preference rights).
Pecard first contends that the agency violated his VEOA
1 Specifically, the Board sought clarification of
whether Pecard’s job offer was withdrawn before the pass
over was sustained, whether the pass over request ap-
plied to the 0154 position, whether the agency had au-
thority to sustain the pass over, and whether Garza was a
preference eligible.
5 PECARD v. AGRICULTURE
rights by withdrawing its tentative offer for the 0154
position. Pecard claims the withdrawal was the result of
a negative suitability determination by the agency, ap-
pealable to the Board pursuant to 5 C.F.R. § 731.501. The
Board rejected this claim on the grounds that the with-
drawal of the tentative job offer was not a “suitability
action” within the Board’s jurisdiction, see id., but rather
an excluded “non-selection action” based on Pecard’s
apparently dishonest conduct, see id. § 731.203(b). It is
well-settled that the Board does not have jurisdiction to
review non-selection actions, and we agree with the Board
that this action fell into that category. Nor has Pecard
shown that the non-selection action here violated the
VEOA.
Next, Pecard contends that his VEOA rights were vio-
lated when the agency failed to consider him for the 0154
position at the GS-6 level, the position to which it ap-
pointed Garza. However, the Board found that because
Pecard had not applied for the 0154 position at the GS-6
level, it was not error to fail to consider him for the job.
We agree. Because Pecard’s name did not appear on the
GS-6 certificate of eligibles from which Garza was chosen,
Pecard was not improperly denied consideration, and no
basis exists for the claim that his VEOA rights were
violated. Pecard has not alleged that the agency pre-
vented him from applying for the 0154 position at the GS-
6 level, nor is there any suggestion that the agency’s
practice of preparing multiple certificates was designed to
circumvent VEOA protections.
Finally, Pecard claims that the agency’s pass over re-
quest with regard to three other positions was invalidly
sustained, and thus violated his VEOA rights. A hiring
agency which objects to a preference eligible candidate for
a “proper and adequate reason,” 5 U.S.C. § 3318(a), in-
cluding false statements or fraud, may request Office of
PECARD v. AGRICULTURE 6
Personnel Management (“OPM”) authorization to exclude
or “pass over” the preference eligible applicant in favor of
a non-preference eligible. See 5 C.F.R. § 332.406(a)(3), (b).
Generally, unsuccessful applicants like Pecard “may not
appeal to the MSPB a decision by OPM or an agency with
delegated authority . . . to grant a pass over request,
irrespective of the reason for the decision.” 5 C.F.R.
§ 332.406(g). However, Pecard is arguing that the agency
lacked delegated authority to act on the pass over request
in question. He points out that the regulation only bars
review when the pass over is granted by OPM or an
agency with “delegated authority,” and argues that in this
case, the agency did not have delegated authority because
“5 U.S.C. § 3318 requires that [a pass over] be sustained
by [OPM itself] in order to be compliant with the statute
and VEOA.” Pet’r’s Br. 6. Surprisingly, the agency did
not respond to this jurisdictional argument in its briefs.
We agree with Pecard that review of the alleged absence
of delegated authority is not an issue foreclosed by
§ 332.406(g).
Nonetheless, the Board concluded that OPM’s regula-
tion properly delegated authority to the agency to act on
the pass over request, and we agree. Section 3318(b)(4)
bars delegation of OPM’s pass over authority only with
regard to applicants “ha[ving] a compensable service-
connected disability of 30 percent or more.” § 3318(b)(2).
This limitation was relevant in Gingery v. Dep’t of De-
fense, 550 F.3d 1347, 1350 (Fed. Cir. 2008), but does not
govern this case because Pecard has not demonstrated
that he is a qualified 30 percent disabled veteran. Section
3318 does not otherwise bar delegation, nor suggest that
the delegation here is in any way impermissible. Section
332.406, the regulation that explicitly delegated authority
to the agency to act on the pass over request, took effect
prior to the request affecting Pecard. See 73 Fed. Reg. at
7 PECARD v. AGRICULTURE
20,149. In sum, Pecard has not demonstrated that the
agency acted without authority.2
We find Pecard’s remaining challenges unpersuasive.
We agree that the Board did not abuse its discretion by
dismissing OPM as a party, especially given that Pecard
appealed OPM’s suitability determination in an inde-
pendent action. Though the Board opinion did not discuss
every issue raised by Pecard or articulate his claims as he
did, this failure is not an abuse of discretion. We also
conclude the Board did not abuse its discretion by denying
Pecard’s requests for discovery and sanctions.
COSTS
No costs.
2 In June 2009, the agency requested an OPM de-
termination of Pecard’s suitability for employment. In
October 2010, OPM found Pecard ineligible, cancelled his
pending applications, and barred him from consideration
for the covered positions until 2013. Pecard appealed
OPM’s decision in a separate MSPB action, DA-0731-11-
0159-I-1, which has since settled.