Eric Williams v. Department of Defense ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS, DOCKET NUMBER
Appellant, DC-3330-18-0427-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 26, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eric Williams, North Charleston, South Carolina, pro se.
Katherine Largo Yourth, Esquire, Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act (VEOA) of 1998. On petition for review, the appellant argues
that he is entitled to corrective action because he proved that the agency violated
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
his veterans’ preference rights, under 5 U.S.C. §§ 3311(2) and 3319, 2 5 C.F.R.
§ 302.302(d), and another provision that appears to be from the Office of
Personnel Management (OPM) Delegated Examining Operations Handbook
(DEOH), 3 by rating him ineligible based only on his occupational assessme nt; by
rating him ineligible, regardless, because his response to Question #1 of the
assessment showed that he rated himself as minimally qualified ; by failing to
place him in the highest category; and by selecting a nonveteran over him without
following the passover procedures. Petition for Review (PFR) File, Tab 2 at 5, 9-
12. He also argues that the administrative judge was biased because he ruled for
the agency, declined his request for a hearing, failed to issue a close of record
order, and denied him an opportunity to respond to the agency’s evidence before
issuing the initial decision. Id. at 6-10.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fac t;
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 administrative
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
2
The appellant argues that the agency violated the passover procedures identifi ed in
5 U.S.C. § 3318, which apply to the traditional rating and ranking process. Here, the
agency utilized category rating in making a selection for the position at issue. Initial
Appeal File, Tab 5 at 49. Section 3319 sets forth the process for utilizing category
rating, including the procedures for placing preference-eligible candidates in categories
in accordance with their veterans’ preference and passing over preference -eligible
candidates. 5 U.S.C. § 3319(a), (b), (c)(7). We therefore construe the appellant’s
argument as raising a section 3319 claim.
3
See Office of Personnel Management, Delegated Examining Operations Handbook,
chapter 5, section B at 105 (May 2007), https://www.opm.gov/policy-data-
oversight/hiring-information/competitive-hiring/deo_handbook.pdf (last visited Aug.
19, 2022).
3
diligence, was not available when the record closed. 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, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claims that the administrative judge committed rever sible
procedural errors and to consider in more detail his arguments that were not
addressed below, we AFFIRM the initial decision.
¶3 The administrative judge did not address whether the agency allowed the
appellant to credit all of his experience when completing the assessment. Under
5 U.S.C. § 3311, a preference eligible is entitled to have a broad range of prior
experience considered, including relevant military experience and experience
gained “in religious, civic, welfare, service, and organizational activities.” No
aspect of the application materials restricted the appellant from considering that
type of experience in assessing whether he met the specialized experience
requirement for the position and in selecting the most appropriate response to
Question #2 of the assessment. Initial Appeal File (IAF), Tab 5 at 21, 47-48; see
5 U.S.C. § 3311; cf. Kirkendall v. Department of the Army, 573 F.3d 1318,
1324-25 (2009) (finding that the agency violated the veterans’ preference rights
afforded to the preference-eligible applicant under 5 U.S.C. § 3311 by failing to
consider his relevant military experience in determining his eligibility). Rather,
the announcement apprised applicants that such experience would be credited.
IAF, Tab 5 at 47-48. To the extent that the appellant did not consider those
experiences in selecting an answer to Question #2, that error is attributable to
him, not the agency.
¶4 Further, the appellant’s claim that the DEOH required the agency to
consider his application attachments in determining his eligibility is without
merit. PFR File, Tab 2 at 11-12; Initial Appeal File (IAF), Tab 8 at 4. The
DEOH is not a statute or regulation and therefore cannot support a claim for
4
corrective action under VEOA. Cf. Graves v. Department of Veterans Affairs,
117 M.S.P.R. 491, ¶ 9 (2012) (finding that, to the extent the appellant alleged that
the agency violated OPM’s VetGuide, he failed to nonfrivolously allege a
violation of statute or regulation relating to veterans’ preference). Because the
appellant rated himself not minimally qualified in his assessment, he was not
entitled to be considered for the next phases of the selection process, such as
being placed in a category in accordance with his veterans’ preference. IAF, Tab
6, Initial Decision (ID) at 5-6; IAF, Tab 5 at 10-12, 18, 20-21, 47-48; see
Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, 539 (2010) (observing that
no authority requires that a preference eligible be considered at every stage of the
selection process); Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646,
¶ 13 (2006) (explaining that VEOA does not provide that veterans will be
considered for positions for which they are not qualified).
¶5 In addition, we agree with the administrative judge that a hearing was
unnecessary, as the parties did not dispute the dispositive factual issues—that the
appellant indicated in his online assessment that he lacked the specialized
experience and/or education for the position at the advertised levels and that his
application was automatically removed from consideration as a result. ID at 5;
see Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 10 (2010) (explaining
that the Board may decide the merits without a hearing when there is no genuine
dispute of material fact and one party must prevail as a matter of law ). However,
as correctly argued by the appellant, the administrative judge erred by failing to
advise him that she would not be holding his requested hearing, set a date on
which the record would close, or allow the parties to submit further argument and
evidence on the merits of the appeal before the close of the record. 4 See Jarrard,
4
The appellant cites to Schucker v. Federal Deposit Insurance Corporation, 401 F.3d
1347 (Fed. Cir. 2005), as support for his contention that the administrative judge
committed reversible error in denying him an opportunity to submit rebuttal evidence .
PFR File, Tab 2 at 9-10. In Schucker, the Federal Circuit found that the Board had a
longstanding policy of finding that an administrative judge has committed error by
5
113 M.S.P.R. 502, ¶ 11. Because of that error, we have considered all of the
appellant’s submissions from below and on review, including his May 7, 2018
response that he submitted to the administrative judge after the initial decision’s
issuance. PFR File, Tabs 2, 4; IAF, Tabs 1, 4, 8. Accordingly, the appellant has
not shown how, under these circumstances, the administrative judge’s procedural
errors prejudiced his substantive rights; therefore, those errors do not provide a
basis for review. See Heckman v. Department of the Interior, 106 M.S.P.R. 210,
¶ 13 (2007) (finding no reversible error because the appellant did not show that
the cancellation of his requested hearing prejudiced his substantive rights under
VEOA); see generally Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (finding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights).
¶6 Finally, in making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if his
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). The appellant’s claims, which do not relate to any extrajudicial
conduct by the administrative judge, neither overcome that presumption, nor
establish a deep-seated favoritism or antagonism.
closing the record without allowing the parties an opportunity to submit rebuttal
evidence. 401 F.3d at 1355-57. Although Schucker did not involve a VEOA appeal,
the Board’s approach in VEOA appeals is consistent with the Federal Circuit’s holding
in that case.
6
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your s ituation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
8
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appea ls of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.