Earnest C. Ellis v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EARNEST C. ELLIS, DOCKET NUMBER
Appellant, AT-3330-14-0748-I-1
v.
DEPARTMENT OF VETERANS DATE: December 23, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Earnest C. Ellis, Antioch, Tennessee, pro se.
Alan E. Foster, Esquire, Nashville, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his request for corrective action under the Veterans Employment
Opportunities Act of 1988 (VEOA) for failure to state a claim upon which relief
may be granted. Generally, we grant petitions such as this one only when: the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the judge’s rulings during either the
course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and
based on the following points and authorities, we conclude that the petitioner has
not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency issued a vacancy announcement under merit promotion
procedures for a GS-11 Supervisory Diagnostic Radiologic Technologist position
at the Tennessee Valley Healthcare System (TVHS). 2 Initial Appeal File (IAF),
Tab 11, Subtab 2l. The vacancy announcement indicated that it was open only to
current TVHS employees. Id. at 1-4. The appellant, a preference-eligible veteran
employed as a GS-8 Diagnostic Radiologic Technologist with the TVHS, applied
and was considered for the position, but the agency ultimately selected another
applicant. IAF, Tab 1 at 1, Tab 2 at 2 (Standard Form 50), Tab 11, Subtabs
2d-2k.
2
The merit promotion process is used when the position is to be filled by an employee
of the agency or by an applicant already employed in the competitive service. See
5 C.F.R. § 335.103(b)(1); see Joseph v. Federal Trade Commission, 505 F.3d 1380,
1382 (Fed. Cir. 2007).
3
¶3 The appellant challenged his nonselection to the Department of Labor
(DOL) alleging a violation of his veterans’ preference rights under VEOA and
employment discrimination under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). 3 IAF, Tab 1 at 17-19. The
appellant explained that he had been passed over for a nonveteran with no
supervisory experience and that the selection panel had repeatedly passed over
veterans for less or equally experienced nonveterans. Id. at 19. DOL closed the
complaint effective March 18, 2014, without taking any corrective action because
the vacancy announcement had only been open to current agency employees and
therefore VEOA did not apply. See id. at 7.
¶4 The appellant then filed an appeal with the Board on June 4, 2014, arguing
that he was the most qualified candidate and that he had been improperly passed
over because the selection panel had been biased against him and had failed to
“operat[e] within the 1 st and 2 nd Merit Systems Principles.” Id. at 5. He asserted
that, although veterans’ preference was inapplicable to the position he applied
for, he should have been selected because he is a veteran and was the most
qualified candidate for the position. Id.
¶5 The administrative judge issued orders on timeliness and on the burdens of
proof to establish jurisdiction under VEOA, and the appellant responded only to
the order on timeliness. IAF, Tabs 4-5, 8. Without holding a hearing, the
administrative judge dismissed the appellant’s request for corrective action for
failure to state a claim upon which relief could be granted. IAF, Tab 12, Initial
Decision (ID). Specifically, he found that the vacancy announcement was open
3
Although the appellant alleged a USERRA violation in his complaint to DOL, IAF,
Tab 1 at 18, he did not mention it anywhere in his appeal to the Board or on petition for
review, see IAF, Tabs 1, 5; Petition for Review (PFR) File, Tabs 1-2, 5. Accordingly,
we find that the appellant abandoned any USERRA claim.
4
only to current TVHS employees, and, therefore, veterans’ preferences rights did
not apply. 4 ID at 3-4.
¶6 The appellant has filed a petition for review, in which he asserts that his
appeal was not based on a violation of his veterans’ preference rights but rather
on the agency’s prohibited personnel practices, violations of merit systems
principles, mismanagement of funds, and abuse of authority. PFR File, Tab 1 at
4. The agency has responded in opposition and the appellant has replied to the
agency’s response. PFR File, Tabs 4-5.
¶7 To the extent that the appellant’s claim is based on an alleged violation of
his veterans’ preference rights under VEOA, we agree with the administrative
judge that the appellant has failed to state a claim upon which relief may be
granted. See ID at 3-4. The record reflects, and the parties do not dispute, that
the appellant applied under a merit promotion vacancy announcement to which
only current TVHS employees could apply. 5 See IAF, Tab 1, Tab 11, Subtab 1 at
1, Subtab 2l; see also PFR File, Tabs 1, 4-5. It is well-settled that an employee is
not entitled to veterans’ preference in the merit promotion process. Perkins v.
U.S. Postal Service, 100 M.S.P.R. 48, ¶ 9 (2005). Accordingly, as the appellant
has acknowledged, he is not entitled to veterans’ preference under the
circumstances present here. See id.; see also PFR File, Tab 1 at 4.
¶8 Insofar as the appellant seeks to challenge the agency’s alleged prohibited
personnel practices, violations of the merit systems principles, gross
mismanagement, and abuse of authority, the Board lacks jurisdiction over such
4
Because the appeal was dismissed for failure to state a claim, the administrative judge
did not reach the timeliness issue. See ID at 2 n.1.
5
Although the vacancy announcement indicated in one place that all United States
citizens may apply, it specified that the position was “Full Time – Agency Employees
Only” in the “position information” field and indicated under “key requirements” that
the applicant must be a current TVHS employee. IAF, Tab 11, Subtab 2l at 3-4.
Further, the appellant does not challenge the finding by DOL or the administrative
judge that the position was only open to current TVHS employees. See PFR File, Tab 1
at 4; see also IAF, Tab 1 at 7; ID at 2, 4.
5
allegations. See PFR File, Tab 1 at 4, Tab 5 at 4-5. The merit system principles
are not themselves a source of Board jurisdiction, nor is a nonselection an
otherwise appealable action with respect to which the appellant could claim that
the agency’s alleged violation of merit system principles made its decision “not in
accordance with law.” Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 15
(2007); see 5 U.S.C. § 7701(c)(2)(C) (an otherwise appealable action cannot be
sustained if the appellant shows that it is “not in accordance with law”).
Similarly, absent an otherwise appealable action, the Board cannot consider the
appellant’s claim that the agency committed various prohibited personnel
practices. Davis, 105 M.S.P.R. 604, ¶ 16. Finally, to the extent that the appellant
seeks to base his claim on disclosures of gross mismanagement or abuse of
authority, the appellant must first seek corrective action from the Office of
Special Counsel (OSC). Benton-Flores v. Department of Defense, 121 M.S.P.R.
428, ¶ 4 (2014). Here, the appellant has presented no evidence of exhaustion
before OSC; accordingly, the Board lacks jurisdiction to hear his claims regarding
abuse of authority or gross mismanagement. See id.NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
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that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court's "Guide for
Pro Se Petitioners and Appellants," which is contained within the court's Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.