Donaldson v. Department of Homeland Security ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT DONNELL DONALDSON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2012-3160
______________________
Petition for review of the Merit Systems Protection
Board in No. DC3330110862-I-2.
______________________
Decided: July 11, 2013
______________________
ROBERT DONNELL DONALDSON, of Landover, Mary-
land, pro se.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
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
SCOTT D. AUSTIN, Assistant Director.
______________________
Before LOURIE, SCHALL, and PROST, Circuit Judges.
2 DONALDSON v. DHS
PER CURIAM.
DECISION
Robert Donnell Donaldson petitions for review of the
final decision of the Merit Systems Protection Board
(“Board”) that denied his petition for review of the initial
decision of a Board administrative judge (“AJ”). The AJ
ruled that Mr. Donaldson was not entitled to relief under
the Veterans Employment Opportunities Act of 1998, 5
U.S.C. §§ 3330a–3330c (“VEOA”). See Donaldson v. Dep’t
of Homeland Sec., No. DC-3330-11-0862-I-2 (M.S.P.B.
June 21, 2012) (“Final Decision”). We affirm.
DISCUSSION
I.
Mr. Donaldson is a disabled veteran who, in response
to a vacancy announcement posted in February of 2011,
applied for a position as a Marine Transportation Special-
ist with the Coast Guard. 1 After interviewing two candi-
dates (but not Mr. Donaldson), the Department of
Homeland Security (the “agency”) offered the position to
Rogers Henderson, who had retired from the Coast Guard
as a Lieutenant Commander. Mr. Henderson accepted
the position.
II.
Mr. Donaldson appealed his non-selection to the
Board, where he requested a decision on the written
record. On October 3, 2011, the AJ assigned to the case
issued a close of record order that allowed the parties to
provide additional information until the record closed on
1 This vacancy announcement was a re-posting of
one of the positions at issue in prior appeal 2012-3106,
reported at Donaldson v. Department of Homeland Securi-
ty, 495 F. App’x 53 (Fed. Cir. Oct. 4, 2012), cert. denied,
___ S.Ct. ___, 2013 WL 673877 (June 24, 2013).
DONALDSON v. DHS 3
November 4, 2011. The AJ also informed Mr. Donaldson
of what was required to prove the agency had violated his
veterans’ preference rights. On October 13, 2011, the
agency submitted a narrative response to Mr. Donaldson’s
claims, as well as certain supporting documentation. In
response, Mr. Donaldson filed a closing submission, in
which he alleged that the agency had not only violated his
veterans’ preference rights by the non-selection, but also
had retaliated against him for allegedly protected whis-
tleblowing activity. The AJ docketed a separate Individu-
al Right of Action (IRA) appeal under the Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16
(codified in scattered sections of 5 U.S.C.), to address
these allegations (the “Whistleblower Claims”). 2 Thus,
only Mr. Donaldson’s claims under the VEOA remained at
issue.
On December 16, 2011, the AJ rejected Mr. Don-
aldson’s claim under the VEOA because Mr. Donaldson
had failed to demonstrate that the agency had violated his
veterans’ preference rights. See Donaldson v. Dep’t of
Homeland Sec., No. DC-3330-11-0862-I-2, slip op. at 8–9
(Dec. 16, 2011) (“Initial Decision”). By way of background,
the AJ explained that an agency can fill a vacancy using
either the open “competitive examination” process or the
“merit promotion” process. See Initial Decision at 5
(citing Joseph v. Int’l Trade Comm’n, 505 F.3d 1380, 1381
(Fed. Cir. 2007)). The competitive examination process is
generally used to review applicants from outside the
agency while the merit promotion process is used when
the position is to be filled by an employee of the agency or
by an applicant from outside the agency who has “status”
in the competitive service. See Initial Decision at 5 (citing
Joseph, 505 F.3d at 1381–82).
2 The Board’s dismissal of the Whistleblower
Claims for lack of jurisdiction is at issue in another ap-
peal, No. 2012-3161.
4 DONALDSON v. DHS
The AJ further explained that, under the VEOA, vet-
erans and other “preference-eligible” persons may receive
special advantages, depending on the process used. See
Initial Decision at 5–6 (citing Joseph, 505 F.3d at 1381–
82). In the competitive examination process, preference-
eligible persons receive additional points (not received by
non-preference-eligible applicants) on their final rating
scores. See Initial Decision at 6 (citing Joseph, 505 F.3d
at 1381–82). In the merit promotion process, the only
advantage received by a preference-eligible person is the
opportunity to apply for a vacancy that would otherwise
be open only to current agency employees. Id. An agency
may seek applicants simultaneously under both process-
es, noted the AJ, and then fill the position using the merit
promotion process. See Initial Decision at 6 (citing Jo-
seph, 505 F.3d at 1384–85; Abell v. Dep’t of the Navy, 343
F.3d 1378, 1383 (Fed. Cir. 2003)). In such a situation, a
preference-eligible applicant only receives the opportunity
to apply, not any point or ranking preference. See id.
The AJ found that the agency had announced the Ma-
rine Transportation Specialist position under both the
competitive examination process and the merit promotion
process. Initial Decision at 6. According to the AJ, alt-
hough Mr. Henderson was selected under the merit
promotion process, Mr. Donaldson’s application was fully
considered by the agency under the competitive examina-
tion process. Initial Decision at 6–7. Based on those
facts, the AJ concluded that Mr. Donaldson was afforded
all of the rights to which he was entitled under the VEOA
in the circumstances—i.e., the opportunity to apply and
compete for the vacancy. Id.
Mr. Donaldson petitioned the Board for review. In the
Final Decision, the Board denied the petition. Applying
reasoning similar to the AJ’s, the Board found that the
agency “properly allowed the appellant to apply and
compete for the position, and its decision to select another
candidate, who was not a preference eligible, through the
merit promotion process did not violate the appellant’s
DONALDSON v. DHS 5
veterans’ preference rights.” Final Decision at 2. With
the petition for review denied, the Initial Decision became
the final decision of the Board. Final Decision at 3. This
appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
III.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it 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); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998).
IV.
To be entitled to relief under the VEOA, an appellant
must prove by preponderant evidence that the agency’s
actions violated one or more of the appellant’s statutory or
regulatory veterans’ preference rights in a selection
process. See Johnson v. Soc. Sec. Admin., 276 F. App’x
1014, 1017 (Fed. Cir. 2008) (nonprecedential) (citing
Isabella v. Dep’t of State, 106 M.S.P.R. 333, 345 (2007)).
We find no error in the Board’s holding here because, as
explained by both the AJ and the Board, the agency did
not violate Mr. Donaldson’s veterans’ preference rights by
announcing the position using both processes simultane-
ously, and then selecting Mr. Henderson under the merit
promotion process. See Dean v. Consumer Prod. Safety
Comm’n, 548 F.3d 1370, 1373 (Fed. Cir. 2008); Joseph,
505 F.3d at 1384–85. Specifically, Mr. Donaldson re-
ceived the only benefit to which he is entitled—the oppor-
tunity to apply for a position that would otherwise be
available only to current agency employees. See Dean,
548 F.3d at 1373; Joseph, 505 F.3d at 1383.
We turn now to the arguments Mr. Donaldson raises
on appeal. First, Mr. Donaldson asserts that the Final
6 DONALDSON v. DHS
Decision should be vacated because the agency committed
a “fraud upon the court” when an agency attorney stated,
in the agency’s narrative response before the Board, that
Mr. Henderson was a “preference eligible veteran.”
According to Mr. Donaldson, as a retired lieutenant
commander, Mr. Henderson was not eligible to be deemed
“preference eligible.” See 5 U.S.C. § 2108(4)(b). 3 We do
not find this argument persuasive.
As an initial matter, the agency admits now that Mr.
Henderson was not, in fact, preference eligible. See
Appellee Br. 16. However, any error by the agency attor-
ney did not infect the hiring process because, as demon-
strated by the record before us, Mr. Henderson was not
considered preference eligible by the agency. Further,
neither the AJ nor the Board relied on the agency attor-
ney’s error in the Initial Decision or the Final Decision.
In fact, in the Final Decision, the Board specifically
pointed out that Mr. Henderson was “not a preference
eligible.” See Final Decision at 2. Moreover, Mr. Hender-
son’s status as preference eligible or not is irrelevant here
because, as a veteran with three or more years of continu-
ous service under honorable conditions, he was eligible to
apply under the merit promotion process. See 5 U.S.C.
§ 3304(f)(1) 4; 5 C.F.R. § 335.106. Thus, the error by the
3 This statute provides, in relevant part, that “‘pref-
erence eligible’ does not include a retired member of the
armed forces unless . . . the individual retired below the
rank of major or its equivalent.” The rank of lieutenant
commander in the Coast Guard (and Navy) is the equiva-
lent of the rank of major in the Army, Air Force, and
Marines.
4 This statute provides: “Preference eligibles or vet-
erans who have been separated from the armed forces
under honorable conditions after 3 years or more of active
service may not be denied the opportunity to compete for
vacant positions for which the agency making the an-
DONALDSON v. DHS 7
agency attorney regarding Mr. Henderson’s status had no
impact on the prior proceedings or the hiring process, and
does not provide grounds to disturb the Final Decision.
Second, Mr. Donaldson asserts that an executive
Memorandum issued on May 11, 2010, titled “Presidential
Memorandum – Improving the Federal Recruitment and
Hiring Process” (the “Memorandum”) prohibits agencies
from simultaneously using both the competitive evalua-
tion process and the merit promotion process. Specifical-
ly, Mr. Donaldson relies on the statement in the
Memorandum that “Agency heads shall . . . adopt hiring
procedures that . . . provide for selection from among a
larger number of qualified applicants by using the ‘cate-
gory rating’ approach . . . rather than the ‘rule of 3’ ap-
proach, under which managers may only select from
among the three highest scoring applicants.” This state-
ment, however, does not preclude the simultaneous use of
both hiring processes. Instead, it provides authority for
the heads of executive agencies to utilize the “category
rating” approach, see 5 U.S.C. § 3319, 5 rather than being
required to select from the top three candidates under the
“rule of three” approach, see 5 U.S.C. 3318(a). The state-
ment does not make the “category rating” approach man-
datory, but rather merely requires agencies to adopt
nouncement will accept applications from individuals
outside its own workforce under merit promotion proce-
dures.”
5 Under the category rating approach, an agency
develops a rating policy that describes how applicants will
be evaluated and placed in two or more quality categories.
See 5 U.S.C. § 3319(a). When filling a position under the
category rating approach, the agency selects from within
the highest quality category regardless of the number of
candidates, with preference-eligible applicants receiving
preference within each category. See 5 U.S.C. §§ 3319(b)–
(c).
8 DONALDSON v. DHS
procedures that allow them to use that alternative ap-
proach. See 5 U.S.C. § 3319 (titled “Alterative Ranking
and Selection Procedures”); see also 5 U.S.C. § 3319(a)
(stating that agencies “may establish category rating
systems”). The Memorandum does not, as argued by Mr.
Donaldson, “remove discretion from federal agencies when
filling vacancies when using dual advertisements” or
“render[] moot” this court’s decisions in Joseph and Dean.
Because the Memorandum does not conflict with the
propriety of an agency simultaneously using both hiring
processes, we reject Mr. Donaldson’s argument.
Finally, Mr. Donaldson asserts that the AJ erred by
docketing a separate appeal for the Whistleblower Claims
at issue in appeal No. 2012-3161. We conclude that the
AJ properly separated the Whistleblower Claims as a
separate IRA appeal. See Initial Decision at 3; see also
Wooten v. Dep’t of Veterans Affairs, 96 M.S.P.R. 671, 675
n.* (2004) (“If the appellant asserts that the Board has
jurisdiction over this [whistleblower] claim as an IRA
appeal, the AJ shall docket that claim as a separate IRA
appeal.”). Thus, in this decision, we will not address the
merits of Mr. Donaldson’s arguments relating to the
Whistleblower Claims.
We have considered the other arguments raised by
Mr. Donaldson and do not find them persuasive.
V.
Because the final decision of the Board in this case is
supported by substantial evidence and is free of legal
error, it is affirmed.
AFFIRMED
COSTS
No costs.