Williams v. Department of Air Force ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ERIC WILLIAMS,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2010-3153
__________________________
Petition for review of the Merit Systems Protection
Board in AT3443070858-B-3.
__________________________
Decided: December 14, 2010
__________________________
ERIC WILLIAMS, N. Charleston, South Carolina, pro se.
P. DAVID OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES
Deputy Director.
__________________________
WILLIAMS v. AIR FORCE 2
Before LINN, PLAGER, and PROST, Circuit Judges.
PER CURIAM.
Eric Williams (“Williams”) appeals the final judgment
of the Merit System Protection Board (“Board” or
“MSPB”), finding that the United States Department of
the Air Force (“Air Force”) did not violate Williams’s
rights under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”). Williams
v. Dep’t of the Air Force, No. AT3443070959-B-3 (MSPB
July 16, 2010) (“Final Order”). Because substantial
evidence supports the Board’s decision, this court affirms.
BACKGROUND
In 2005 Williams applied for a Contract Specialist po-
sition, GS-1102-07, target GS-11 (“GS-7 Contract Special-
ist”), with the Air Force. To fill that position, the Office of
Personnel Management (“OPM”) provided the Air Force
with two lists of eligible candidates, one from Administra-
tive Careers with America (“ACWA”), which involved a
competitive examination process, and the other from the
Outstanding Scholars Program, which did not require a
competitive examination. Williams completed the exami-
nation and was included in the ACWA list. He was listed
as a ten-point preference eligible veteran. Williams
interviewed for the position on August 30, 2005, and was
notified of his non-selection in a letter dated September
15, 2005. Instead, the Air Force selected thirteen indi-
viduals for the position, seven from the Outstanding
Scholars Program and six from the ACWA list. Eight of
the thirteen selected candidates were veterans. Williams
subsequently performed active-duty military service from
January 2006 until February 2007.
Williams filed two challenges related to his non-
selection. First, he filed a complaint with the United
3 WILLIAMS v. AIR FORCE
States Department of Labor, which he ultimately ap-
pealed to the Board, alleging that the Air Force violated
his rights under the Veterans Employment Opportunities
Act (“VEOA”). Second, in what ultimately led to this
appeal, Williams filed an appeal with the MSPB’s Re-
gional Office claiming that his non-selection violated the
USERRA. The two cases, while separate, are related and
their procedural history is intertwined. To describe the
background of this appeal, this opinion will first discuss
the history of Williams’s VEOA appeal and then summa-
rize the history of the current case, Williams’s USERRA
appeal.
Williams’s VEOA appeal
In a letter dated June 27, 2007, while Williams’s
VEOA appeal was pending, the Air Force stipulated that
its selection of candidates from the Outstanding Scholars
Program was erroneous in light of Dean v. Department of
Agriculture, 104 M.P.P.R. 1 (2006). In Dean, the Board
concluded that to the extent the Outstanding Scholars
Program is used to avoid the competitive examination
process when veterans’ preference rights are at issue,
such use violates the VEOA. Dean, 104 M.S.P.R. at ¶ 13.
The Air Force also stipulated that Williams would have
been hired in 2005 but for the Air Force’s use of the
Outstanding Scholar’s Program. The Board ordered
corrective action and Williams was retroactively ap-
pointed to the GS-7 Contract Specialist position along
with backpay and benefits from September 2005. Wil-
liams v. Dep’t of the Air Force, No. AT3443060118-C-1
(MSPB Feb. 11, 2009). Williams, however, declined the
offer of the GS-7 Contract Specialist position because the
Air Force did not offer him a grade level of GS-9 or -11,
which the initially selected employees had since achieved.
The Board issued an order on June 5, 2009, finding that
the Air Force had complied with its instructions. Wil-
WILLIAMS v. AIR FORCE 4
liams v. Dep’t of the Air Force, No. AT3443060118-X-1
(MSPB June 5, 2009). On November 25, 2009, the Board
denied Williams liquidated damages for violation of his
VEOA rights because at the time the Air Force made its
selections it was not aware of the Board’s decision in Dean
and therefore did not willfully violate the VEOA. Wil-
liams v. Dep’t of the Air Force, No. AT3443060118-P-2
(MSPB Nov. 25, 2009).
Williams’s USERRA appeal
In his USERRA appeal, Williams argued that his
military service played a substantial or motivating factor
in his non-selection in violation of USERRA. In addition,
Williams argued that active military service subsequent
to his non-selection would have entitled him to reem-
ployment at the grade level of GS-11under USERRA had
the Air Force hired him, as required, in 2005. The Board
found that Williams had sufficiently alleged these claims
to confer jurisdiction on the Board. Williams v. Dep’t of
the Air Force, No. AT3443070858-I-1 (MSPB Apr. 15,
2008). The administrative judge (“AJ”) deferred consid-
eration of the issues until after the Board decided
whether the Air Force had complied with its order in the
VEOA appeal. Williams v. Dep’t of the Air Force, No.
AT3443060118-P-1, AT3443070858-B-1 (MSPB Aug. 4,
2008). On July 22, 2009, Williams refiled his USERRA
appeal. The AJ denied the appeal finding that Williams:
(1) failed to show that his status as a veteran was a
substantial or motivating factor in his non-selection; and
(2) did not submit an application for reemployment with
the Air Force no later than 90 days after the completion of
his period of military service as required by USERRA.
Williams v. Dep’t of the Air Force, No. AT3443070858-B-3
(MSPB Dec. 29, 2009) (“Initial Decision”). The Board
denied Williams’s petition for review finding that there
was no new, previously unavailable evidence and that the
5 WILLIAMS v. AIR FORCE
AJ made no error affecting the outcome. Williams v. Dep’t
of the Air Force, AT3443070858-B-3 (MSPB July 16,
2010). The Board clarified that:
The appellant’s failure to identify the names of
any applicants hired by the agency who were not
required to take an examination is not dispositive.
Instead, we find that the mere fact that the
agency used competitive and non-competitive hir-
ing authorities to fill the position, and that the
use of such authorities affected whether a com-
petitive examination was used or not, does not es-
tablish that the appellant’s military status was a
substantial or motivating factor in the nonselec-
tion. With regard to the agency’s use of a com-
petitive examination, it appears that at least some
veterans were also exempt from that requirement
given that two 5-point preference eligibles were
initially hired in this case, presumably without
passing a competitive examination, under the
Outstanding Scholar Program.
Id. at 2. Williams filed a timely appeal with this court on
July 22, 2010. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
This court’s review of a decision of the Board is lim-
ited by statute. Under 5 U.S.C. § 7703(c), this court is
bound by a decision of the Board unless we find it arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.
See, e.g., Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321
(Fed. Cir. 1999).
WILLIAMS v. AIR FORCE 6
To prevail on a discrimination action under USERRA,
an appellant “bears the initial burden of showing by a
preponderance of the evidence that his military service
was a substantial or motivating factor in the adverse
employment action.” Erickson v. U.S. Postal Serv., 571
F.3d 1364, 1368 (Fed. Cir. 2009). To be entitled to relief
under VEOA, on the other hand, the appellant must show
by a preponderance of the evidence that the agency’s
action violated any statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a. Because the
two claims require proof of different elements, a finding
that VEOA has been violated does not necessarily estab-
lish a violation of USERRA. This court has “interpreted a
violation of USERRA to require ‘discriminatory ani-
mus’─in other words, a veteran must establish he was
treated in a harsher manner than were non-veterans.”
Jolley v. Dep’t of Hous. & Urban Dev., 299 Fed. App’x 966,
968 (Fed. Cir. 2008) (quoting Sheehan v. Dep’t of Navy,
240 F.3d 1009, 1014 n.3 (Fed. Cir. 2001)). “As opposed to
USERRA, which simply provides that veterans may not
be discriminated against, VEOA actually provides veter-
ans a preference in hiring in certain circumstances. It is
through VEOA that veterans receive additional points in
the competitive hiring process.” Jolley, 299 Fed. App’x at
968.
Williams argues in this appeal that he was discrimi-
nated against in violation of USERRA because he was
required to take an exam while Outstanding Scholars
were not and because the Board previously held that his
VEOA rights had been violated. 1 Williams does not argue
1 In his informal reply brief, Williams requests that
we review Marshall v. Department of Health & Human
Services, 587 F.3d 1310 (Fed. Cir. 2009), while considering
his case. Marshall, however, is inapplicable here because
it deals with a VEOA claim and does not even mention
7 WILLIAMS v. AIR FORCE
that the Board erred in finding that he did not submit the
required application for reemployment with the Air Force
after the completion of his active military service.
Substantial evidence supports the Board’s decision.
As noted by the Board, Williams was interviewed for the
position in the initial selection process “demonstrat[ing]
that he was considered among the most qualified candi-
dates for the position.” Initial Decision at 6. Further, six
of the candidates selected by OPM were veterans and two
of the Outstanding Scholars selected for the position had
veteran’s preference. Id. This suggests that veteran
status was not a motivating factor in Williams’s non-
selection. Substantial evidence supports the Air Force’s
decision and shows no discrimination against him because
of his veteran status.
For the foregoing reasons, the Board’s decision is af-
firmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
USERRA. Moreover, in Marshall, this court required the
agency at issue “to offer the same-or, as near as possible,
a substantially equivalent-position to the veteran” along
with “compensation for any loss of wages or benefits”
suffered by reason of a VEOA violation. Williams did, in
fact, receive the compensation ordered in Mar-
shall─appointment to a GS-7 Contract Specialist position
along with backpay and retroactive benefits─in his VEOA
claim.