Eric Williams v. Department of the Navy ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS, DOCKET NUMBER
Appellant, DC-3330-16-0292-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 12, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Eric Williams, North Charleston, South Carolina, pro se.
Mary Kate DeMane, Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In July 2015, the appellant applied for a GS-9/11 Contract Specialist
position with the agency advertised under vacancy announcement
number 1460254. Initial Appeal File (IAF), Tab 1 at 9, 16. After apparently
being notified that he had been found not qualified for the position, the appellant
timely filed a complaint with the Department of Labor (DOL) alleging that the
agency violated his veterans’ preference rights. See id. at 1. On January 5, 2016,
DOL notified the appellant that it had determined that the evidence did not
support his allegation that the agency violated his veterans’ preference rights and
informed him of his right to appeal the determination to the Board. Id.¶3 The appellant timely filed a request for corrective action with the Board and
requested a hearing. IAF, Tab 1. On January 20, 2016, the administrative judge
issued an order explaining the jurisdictional requirements under VEOA and
ordering the appellant to respond with information establishing jurisdiction within
12 days from the date of the order. IAF, Tab 3 at 1‑7. The administrative judge
further ordered the agency to respond within 20 calendar days of the order and
stated that the record on timeliness, exhaustion, and other jurisdictional issues
would close on the date the agency’s response was due. Id. at 7. On February 5,
2016, the case was reassigned to a different administrative judge. IAF, Tab 5.
On February 9, 2016, the agency filed a motion to dismiss the appeal for lack of
jurisdiction or, in the alternative, for failure to state a claim. IAF, Tab 6 at 4‑5.
The agency argued that the appellant had not responded to the administrative
judge’s jurisdictional order and thus had failed to establish Board jurisdiction.
Id. The agency also argued that, even if the Board found jurisdiction, the
appellant could not establish that the agency violated any veterans’ preference
right because: (1) the agency determined that the appellant was not qualified for
the position; and (2) the agency did not select any candidate from the certified list
generated under vacancy announcement number 1460254, but rather used the
3
Expedited Hiring Authority (EHA) program to fill the vacancies. 2 Id. In support
of its motion, the agency submitted a declaration signed under penalty of perjury
by the Contract Resource and Policy Division Manager who affirmed that the
agency did not select any candidate under the vacancy announcement at issue. Id.
at 6.
¶4 On February 17, 2016, the administrative judge issued an initial decision
finding that the appellant exhausted his administrative remedy with DOL, but that
he failed to make a nonfrivolous allegation that the agency violated any veterans’
preference right. IAF, Tab 7, Initial Decision (ID). Thus, the administrative
judge dismissed the appeal for lack of jurisdiction. 3 ID at 5‑6.
¶5 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition to his petition for review, and the appellant
has submitted a reply to the agency’s response. Petition for Review (PFR) File,
Tabs 1, 4‑5. 4 On review, the appellant argues that the administrative judge did
not give him enough time to “build his case,” failed to communicate with him,
2
The EHA authorizes the Secretary of Defense to “designate any category of positions
in the acquisition workforce . . . as positions for which there exists a shortage of
candidates or a critical hiring need,” and to recruit and appoint qualified persons
directly to such positions. 10 U.S.C. § 1705(g).
3
On February 25, 2016, the regional office received correspondence from the appellant,
dated February 19, 2016. IAF, Tab 9. Because the initial decision already had been
issued, the administrative judge did not consider the appellant’s pleading.
4
Several days after submitting his petition for review, the appellant submitted an
additional pleading, which the Clerk of the Board docketed as a “Supplement to the
Petition for Review.” PFR File, Tab 3. The Board’s regulations only allow certain
pleadings on review: a petition for review, a cross petition for review, a response to a
petition for review, a response to a cross petition for review, and a reply to a response
to a petition for review. 5 C.F.R. § 1201.114(a). The Board does not permit any other
pleadings unless the party files a motion with and obtains leave from the Clerk of the
Board. 5 C.F.R. § 1201.114(a)(5). Even though the appellant has not filed a request for
leave to submit his supplemental pleading, we note, in any event, that the supplemental
pleading contains essentially identical arguments as his other pleadings on review.
Compare PFR File, Tab 3, with PFR File, Tabs 1, 5.
4
and “rush[ed] [his appeal] along without careful thought.” 5 PFR File, Tab 1
at 3-4. He also asserts that the agency violated his veterans’ preference rights by
failing to properly rate his application package and used the EHA to “circumvent
[his] veterans’ preference rights.” Id. at 2, 5‑10.
The administrative judge should have afforded the appellant the opportunity to
rebut the new evidence and argument submitted by the agency on the day the
record on jurisdiction closed.
¶6 Under 5 C.F.R. § 1201.41, an administrative judge is required to conduct
fair and impartial proceedings and is endowed with broad discretionary authority
in executing this mandate. Gavette v. Department of the Treasury, 44 M.S.P.R.
166, 174 (1990). Although the administrative judge has wide discretion to
control the proceedings, including setting the deadline for closing the record, the
procedures used must comport with the basic requirements of fairness and notice,
including an opportunity for response to the opposing party’s submissions. Id.Thus, where one party is precluded from responding to material evidence that is
included in the opposing party’s submission, and upon which the administrative
judge relies in the initial decision, such error may warrant reversal of the initial
decision. Id. The administrative judge’s procedural error is of no legal
consequence, however, unless it is shown to have adversely affected a party’s
substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981).
¶7 As described above, on January 20, 2016, the administrative judge issued an
order on jurisdiction, explaining the jurisdictional requirements for a VEOA
claim and ordering the appellant to respond within 12 days from the date of the
5
With his petition for review, the appellant resubmitted the text from his February 19,
2016 pleading. PFR File, Tab 1 at 5‑10; see IAF, Tab 9. He also submitted a copy of
an undated “formal complaint” against the administrative judge, which he asserts he
submitted to the regional office, complaining that the administrative judge issued the
initial decision within 12 days of the case being reassigned to her and without first
contacting the appellant. PFR File, Tab 1 at 3‑4, 13‑14.
5
order. IAF, Tab 3. The appellant, however, failed to respond within that
timeframe. The agency timely responded on February 9, 2016, and the record on
jurisdiction closed on that date. Id. at 7; IAF, Tab 6. The administrative judge
issued the initial decision on February 17, 2016. ID at 1. The appellant asserts
on review that he mailed a pleading in support of his appeal on February 16,
2016. 6 PFR File, Tab 1 at 3, 12. On February 19, 2016, the appellant mailed
another pleading, arguing that the agency’s use of the EHA program to fill the
vacancies was unlawful and reiterating his contention that the agency violated his
veterans’ preference rights. IAF, Tab 9 at 1‑6. Because the initial decision
already had been issued, the February 16 and February 19, 2016 pleadings were
not considered by the administrative judge in rendering the initial decision.
¶8 In the initial decision, the administrative judge relied on the evidence
submitted with the agency’s motion to dismiss—in particular, the affidavit
provided by the Contract Resource and Policy Division Manager—in finding that
the appellant failed to nonfrivolously allege that the agency violated any of his
veterans’ preference rights. ID at 5; IAF, Tab 6 at 6. However, the
administrative judge closed the record on jurisdiction and issued the initial
decision without affording the appellant the opportunity to rebut the evidence
submitted by the agency on the day the record on jurisdiction closed. This was
error. 7 See Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347,
6
The appellant has not submitted a copy of this pleading on review, and there is no
evidence in the record below that it was ever received by the regional office.
7
Although we find that the administrative judge erred by failing to afford the appellant
an opportunity to rebut the agency’s submission just before the record closed, we find
no merit to the appellant’s other arguments that the administrative judge mishandled his
case by, among other things, failing to communicate with him prior to issuing the initial
decision and by deciding the case within 33 days. PFR File, Tabs 1, 5. Moreover,
insofar as the appellant alleges that the administrative judge was biased against him, we
find nothing in the record to support this allegation. See Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980) (stating that, 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).
6
1355-56 (Fed. Cir. 2005); Anastos v. U.S. Postal Service, 38 M.S.P.R. 18,
21 (1988). We have considered the appellant’s petition for review responding to
the agency’s evidence and, as explained below, we find that the appellant has
established jurisdiction over his claims.
The Board has jurisdiction over the appellant’s claims.
¶9 The Board has jurisdiction over two types of VEOA claims: (1) the denial
of a right to compete; and (2) the violation of a statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference
claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see
generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015).
The appellant appears to have raised both types of claims here. 8 IAF, Tab 1; PFR
File, Tab 1 at 5‑8, Tab 5 at 5‑9.
¶10 First, to establish Board jurisdiction over a right-to-compete VEOA claim,
the appellant must: (1) show that he exhausted his remedy with DOL; and
(2) make nonfrivolous allegations that (i) he is a veteran within the meaning
of 5 U.S.C. § 3304(f)(1); (ii) the actions at issue took place on or after the
December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of
2004; and (iii) the agency denied him the opportunity to compete under merit
8
On review, the agency argues that the Board should not consider the appellant’s
challenge to the agency’s use of the EHA to fill the Contract Specialist vacancies
because he did not raise the allegation below. PFR File, Tab 4 at 6. The agency is
correct that the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). Here, however, we find it appropriate to
consider the appellant’s arguments pertaining to his right‑to‑compete claim for the first
time on review because it appears that he was not informed that the agency had filled
the Contract Specialist vacancies using the EHA program until he received the agency’s
motion to dismiss on the date the record closed, and he was not afforded an opportunity
to respond to the agency’s submission below. IAF, Tab 6; see Nevins v. U.S. Postal
Service, 107 M.S.P.R. 595, ¶ 17 (2008) (finding it appropriate to consider new evidence
on petition for review because the appellant was not informed of the evidentiary
conflict until she received the agency’s final submission on the date the record closed).
7
promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce in violation of 5 U.S.C.
§ 3304(f)(1). Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409,
¶ 5 (2010).
¶11 Second, to establish Board jurisdiction over a veterans’ preference claim,
the appellant must: (1) show that he exhausted his remedy with DOL; and
(2) make nonfrivolous allegations that (i) he is a preference eligible within the
meaning of VEOA; (ii) the action at issue took place on or after the October 30,
1998 enactment date of VEOA; and (iii) the agency violated his rights under a
statute or regulation relating to veterans’ preference. Miller v. Federal Deposit
Insurance Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 818 F.3d 1357(Fed. Cir. 2016). A statute or regulation “relating to veterans’ preference” under
VEOA is one that stands in some relation to, has a bearing on, concerns, and has
some connection with veterans’ preference rights. Dean v. Department of
Agriculture, 99 M.S.P.R. 533, ¶ 17 (2005), aff’d on recons., 104 M.S.P.R. 1(2006).
¶12 In this case, the administrative judge found, and we agree, that the appellant
exhausted his remedy with DOL. ID at 4‑5. Further, it is undisputed that the
appellant made nonfrivolous allegations that he is a preference eligible and that
the events took place after the enactment dates mentioned above. IAF, Tab 1.
Thus, we need only decide whether the appellant has made nonfrivolous
allegations that: (1) the agency denied him an opportunity to compete in
violation of section 3304(f)(1); and/or (2) the agency violated his rights under a
statute or regulation relating to veterans’ preference. In establishing the Board’s
jurisdiction over a VEOA appeal, an appellant need not state a claim upon which
relief can be granted, and an appellant’s allegation, in general terms, that his
veterans’ preference rights were violated is sufficient to meet the nonfrivolous
allegation requirement. Miller, 121 M.S.P.R. 88, ¶ 6.
8
¶13 Regarding his right-to-compete claim, the appellant alleges that the agency
denied him the right to compete for a vacant position for which the agency
accepted applications from individuals outside its own workforce in violation
of 5 U.S.C. § 3304(f)(1) by, among other things, filling the Contract Specialist
vacancies using the EHA program without openly advertising the vacancy
announcement under the EHA. 9 PFR File, Tab 1 at 5‑7. Pursuant to 5 U.S.C.
§ 3304(f)(1), agencies must afford preference eligibles and other covered
individuals “the opportunity to compete for vacant positions for which the agency
making the announcement will accept applications from individuals outside its
own workforce under merit promotion procedures.” The requirement that
agencies afford covered individuals the right to compete pursuant to 5 U.S.C.
§ 3304(f)(1) is not limited merely to situations in which an agency elects to use
merit promotion procedures, but rather is triggered when an agency accepts
applications from individuals outside its own workforce. Montgomery v.
Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 7 (2016). An
agency may violate a covered individual’s right to compete under
section 3304(f)(1) when it deprives him of the right to apply by filling a position
without the required public notice. Dean v. Office of Personnel
Management, 115 M.S.P.R. 157, ¶ 28 (2010).
¶14 Below, the agency submitted its internal guidance for using the EHA, which
states that positions to be filled using that authority must be advertised on
USAJOBS as “Job Opportunity Announcements.” IAF, Tab 6 at 18. It is unclear
from the record whether that occurred for the vacancies at issue. Further, to date,
9
The appellant also argues that the agency’s use of the EHA program to fill the
vacancies after September 30, 2015, was unauthorized because the EHA program
expired on September 30, 2015. PFR File, Tab 1 at 2, 6. This assertion is incorrect.
Although a prior version of the statute had an expiration date of September 30, 2015,
the National Defense Authorization Act for Fiscal Year 2013 extended the EHA until
September 30, 2017. National Defense Authorization Act for Fiscal Year 2013, Pub. L.
No. 112‑239, § 803(b), 126 Stat. 1632, 1825 (2013). The current version of the statute
does not contain any expiration date for the EHA program. 10 U.S.C. § 1705(g) (2015).
9
the agency has not disputed the appellant’s claim that it accepted applications
from outside of its own workforce in filling the Contract Specialist vacancies
under the EHA program. IAF, Tab 6; PFR File, Tab 1 at 7-8, Tab 4. If it did, the
appellant was entitled to an opportunity to compete for the positions pursuant
to 5 U.S.C. § 3304(f)(1). The appellant has nonfrivolously alleged that the
agency failed to openly advertise the position under the EHA program, thus
establishing jurisdiction over his right-to-compete claim. See Montgomery, 123
M.S.P.R. 216, ¶ 5.
¶15 Regarding his veterans’ preference claim, the appellant argues that the
agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to credit
him with all experience and education material to the positions. IAF,
Tab 1 at 10-14; PFR File, Tab 1 at 7. He noted that his application package
included a Standard Form 50 indicating that he previously had held a Contract
Specialist position in another agency and that the agency failed to credit him with
that experience. IAF, Tab 1 at 11. It is unclear from the current record how the
agency obtained applications and made selections under the EHA for the
vacancies at issue. It is also unclear whether those on the hiring certificate for
vacancy announcement number 1460254 were, or should have been, considered
for the EHA hires. We find that the appellant has nonfrivolously alleged that the
agency did not comply with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by
failing to consider his experience when reviewing his application for the Contract
Specialist positions. See Miller, 121 M.S.P.R. 88, ¶ 7. We also find that the
appellant nonfrivolously alleged that the agency failed to comply with pass-over
procedures under 5 U.S.C. § 3318 by selecting nonpreference eligibles over him,
a preference eligible. IAF, Tab 1 at 10, 13; PFR File, Tab 1 at 7‑8; see Alegre v.
Department of the Navy, 118 M.S.P.R. 424, ¶ 13 (2012). Accordingly, we find
that the Board has jurisdiction over the appellant’s veterans’ preference claims.
10
This appeal must be remanded because there are genuine issues of material fact
that cannot be resolved on the current record.
¶16 The Board has the authority to decide a VEOA appeal on the merits, without
a hearing, when there is no genuine dispute of material fact and one party must
prevail as a matter of law. Montgomery, 123 M.S.P.R. 216, ¶ 13. As discussed
herein, there remain genuine disputed issues of material fact that cannot be
resolved on the current record. Therefore, this appeal must be remanded for the
record to be fully developed regarding the material facts. See id.¶17 As previously noted, pursuant to 5 U.S.C. § 3304(f)(1), agencies must
afford preference eligibles and other covered individuals the opportunity to
compete for vacant positions when it accepts applications from outside its own
workforce, and a lack of public notice of the vacancy may violate that right.
Dean, 115 M.S.P.R. 157, ¶ 28. Here, the agency contends that it did not select
any candidate from the certificate of eligibles generated under vacancy
announcement number 1460254, and the appellant submitted a copy of an email
informing him that the vacancy announcement had been canceled. IAF, Tab 1
at 9, Tab 6 at 6. The agency has not explained how it obtained the names of the
applicants it ultimately selected to fill the Contract Specialist vacancies. IAF,
Tab 6; PFR File, Tab 4. Consequently, it is unclear from the current record
whether the agency relisted the vacancy announcement under the EHA program,
whether it made its selections through a name request from vacancy
announcement number 1460254, or whether it made its selections from another
source. 10 See IAF, Tab 6 at 6; see also id. at 19. Accordingly, we find that there
10
The vacancy announcement under which the appellant applied does not identify that
the position will be filled under the EHA program. IAF, Tab 1 at 16‑26, Tab 6 at 7-13.
The agency’s internal guidance provides that a vacancy announcement that will be filled
under the EHA program must be advertised on USAJOBS and must identify the use of
the EHA authority. Id. at 18. It further provides that selections may be made either
from a referral certificate, which requires that preference eligibles must be considered
before all nonpreference-eligible candidates, or through a name request. Id. at 19.
11
is insufficient evidence in the record to determine if the agency denied the
appellant the right to compete in filling the vacancies at issue in this appeal.
¶18 Further, given the lack of evidence about how the agency filled the Contract
Specialist vacancies, we are unable to determine if the appellant was entitled to
any veterans’ preference rights and, if so, whether the agency violated any such
rights. In addition to the dearth of information regarding how it selected
individuals under the EHA, it is unclear from the record whether the selectees
were appointed under an authority that allows the agency to appoint individuals
without regard to veterans’ preference laws. 11 If the appellant was entitled to
veterans’ preference rights, then it is unclear whether the agency properly
afforded him those rights because the record is void of evidence pertaining to the
agency’s apparent determination that the appellant was not qualified for the
Contract Specialist positions. On remand, the parties should be afforded an
opportunity to submit evidence and argument regarding the agency’s selection
process and the appointment authority used by the agency to fill the position at
issue.
11
The agency contends that it filled the Contract Specialist positions using the EHA, as
codified at 10 U.S.C. § 1705(g), and that selections made using the EHA “may be made
without regard to the provisions of 5 USC 3309-3318.” PFR File, Tab 4 at 7-8.
Although some appointments under title 10 may be made without regard to the civil
service laws, including those relating to veterans’ preference, see, e.g., Boston v.
Department of the Army, 122 M.S.P.R. 577, ¶ 9 (2015), nothing in section 1705 states
that appointments may be made without regard to veterans’ preference laws, see
10 U.S.C. § 1705. Moreover, the agency’s internal EHA guidance indicates that
veterans’ preference procedures apply, at least when using a referral certificate. IAF,
Tab 6 at 19.
12
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.