John F. Bazan, Esq. v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN F. BAZAN, DOCKET NUMBER
Appellant, SF-3330-13-4195-I-1
v.
DEPARTMENT OF THE ARMY, DATE: January 15, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John F. Bazan, Esquire, Whittier, California, pro se.
Joseph E. Manahan, Esquire, Sacramento, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Vice Chairman Wagner issues separate dissenting opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action under the Veterans
Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant, a preference-eligible veteran who is a GS-13 Attorney
(Contract) with the U.S. Army Corps of Engineers, filed a VEOA appeal with the
Board challenging his nonselection for the GS-14 General Attorney position of
Deputy District Counsel for the U.S. Army Corps of Engineers. 2 Initial Appeal
File (IAF), Tab 1 at 1, 3, 5, 9, 10. The appellant, an Assistant District Counsel,
was one of three finalists interviewed for the position by the selection panel;
however, the panel selected a nonpreference-eligible candidate for the position.
IAF, Tab 5 at 22-25.
¶3 On appeal, the appellant argued, among other things, that the agency did not
consider his veterans’ preference as a positive factor, which violated Department
2
The appellant timely filed his VEOA appeal with the Board after receiving a letter
from the Department of Labor, Veterans’ Employment and Training Service (VETS),
informing him of his Board appeal rights. IAF, Tab 1 at 1, 19-20. In the letter, VETS
informed the appellant that it had completed its investigation of his veterans’ preference
complaint filed under VEOA and determined that the evidence did not support his
allegation that the U.S. Army Corps of Engineers violated his veterans’ preference
rights. Id.
3
of Defense Instruction (DoDI) 1442.02, Personnel Actions Involving Civilian
Attorneys [hereinafter DoDI 1442.02], Enclosure 3, paragraph 2(f) (30 Sept.
2010). IAF, Tab 1 at 5, Tab 5 at 57, 66-67; Tab 17 at 4. The appellant also
argued that he was more qualified for the position than was the selectee and that
the agency manipulated the selection process by changing the position
description to improve the selectee’s chances of promotion. IAF, Tab 17 at 4,
14.
¶4 After finding jurisdiction over the appellant’s VEOA appeal and holding a
hearing, the administrative judge denied the appellant’s request for corrective
action under VEOA. IAF, Tab 21, Initial Decision (ID) at 1. In reaching his
decision, the administrative judge found that the agency made its selection for
the Deputy District Counsel position in accordance with the procedures
pertaining to veterans’ preference in DoDI 1442.02 and the U.S. Army Corps of
Engineers Supplement 1 to Army Regulation (AR) 690-200 [hereinafter Supp. 1
to AR 690-200], chapter 213, paragraph 4-7(d)(2) (8 A.K. Marsh. 2004). ID at 3; see
IAF, Tab 6 at 4-5. The administrative judge found, among other things, that the
agency was only required to follow the principles of veterans’ preference “as far
as administratively feasible” to the extent of treating a candidate’s veterans’
preference “as a positive factor in all stages of the hiring process.” ID at 3
(citing DoDI 1442.02, Enclosure 3, paragraph 2(f)). The administrative judge
further found that the agency discharged its administrative duty during the
selection process by considering, as a “positive factor,” the appellant’s status as
a veteran and properly documenting its reasons for selecting a nonpreference
eligible for the position. ID at 3-5.
¶5 The appellant filed a petition for review reasserting the arguments he made
on appeal and arguing that the administrative judge made errors of fact and
misapplied the relevant instructions and regulations concerning VEOA. Petition
for Review (PFR) File, Tab 4. To be entitled to relief under VEOA, an appellant
must show by preponderant evidence that the agency violated one or more of his
4
statutory or regulatory veterans’ preference rights. See Lis v. U.S. Postal
Service, 113 M.S.P.R. 415, ¶ 11 (2010). Attorney positions in the excepted
service are exempt from the regulatory veterans’ preference appointment
procedures. ID at 3; see 5 C.F.R. § 302.101(c)(8). For these exempted attorney
positions, the Office of Personnel Management (OPM) directs agencies to
“follow the principle of veteran preference as far as administratively feasible.”
5 C.F.R. § 302.101(c); see ID at 3; see also Patterson v. Department of the
Interior, 424 F.3d 1151, 1157 (Fed. Cir. 2005).
¶6 OPM has elected to leave the details of applying veterans’ preference to
attorney hiring up to individual agencies. See Jarrard v. Social Security
Administration, 115 M.S.P.R. 397, ¶ 26 (2010), aff’d, 669 F.3d 1320 (Fed. Cir.
2012). In this case, DoDI 1442.02 is the relevant agency instruction pertaining
to personnel actions and hiring procedures for DoD civilian attorney positions.
IAF, Tab 5 at 57-94. DoDI 1442.02, Enclosure 3, paragraph 2(f) states in
pertinent part that:
Excepted service DoD civilian attorney positions are wholly
exempted from the appointment procedures in [5 C.F.R. part 302].
However, the DoD Components are required to follow principles of
veterans’ preference in hiring civilian attorneys as far as
administratively feasible, as provided for in this Instruction.
Selecting officials must treat veterans’ preference eligibility as a
positive factor in all stages of the hiring process.
IAF, Tab 5 at 66.
¶7 We find that the administrative judge properly applied the relevant law to
the facts, and we agree with his finding that the agency met its obligation to
follow veterans’ preference as far as administratively feasible by treating the
appellant’s status as a veteran as a “positive factor” in the selection process as
required by DoDI 1442.2. See ID at 3-5; IAF, Tab 5 at 56. Although the
appellant argues that it is irrelevant that the agency considered his service as a
veteran “in a generally positive way,” OPM views the positive factor test as
consistent with the requirement that agencies “follow the principle of veterans’
5
preference as far as administratively possible.” PFR File, Tab 4 at 15; see
Patterson, 424 F.3d at 1156-57. The record supports the administrative judge’s
finding that the agency accorded proper consideration to the appellant’s
veterans’ preference in the selection process. Hearing CD (Testimony of District
Counsel, Los Angeles District, who was the selection panel chair).
¶8 We further find that, contrary to the appellant’s arguments on review, the
agency properly documented its reasons for selecting a nonpreference eligible, as
required by Supp. 1 to AR 690-200, chapter 213, paragraph 4-7(d)(2). See PFR
File, Tab 4 at 11-13. The regulation states in pertinent part, that:
The availability of preference eligibles does not preclude the
appointment of a nonpreference eligible candidate. Decisions to
appoint a nonpreference eligible instead of a preference eligible must
be based on factors directly relating to job requirements and must be
documented.
IAF, Tab 6 at 5. The agency issued a memorandum documenting that it selected a
nonpreference eligible based on factors directly related to the job requirements,
including her training by the District’s former legal expert on the Civil Works
Program, her mastery of the law and policies governing the Civil Works Program,
and her “great expertise” in environmental law. IAF, Tab 5 at 29-31. Moreover,
despite the appellant’s arguments to the contrary, he has not shown that the
agency’s revised job description, requiring specialized experience in
environmental law and “the statutes and regulations governing the government[’]s
civil works program,” violated his rights under any statute or regulation related to
veterans’ preference. 3 PFR File, Tab 4 at 10-11, 13-14; IAF, Tab 5 at 43.
3
A U.S. Army Corps of Engineers District Counsel testified that, before the former
Deputy Director retired, he asked the Deputy Director to alter his position description
to reflect more accurately his job duties. Hearing CD (Testimony of District Counsel);
see IAF, Tab 5 at 22, 25, 26, 28. As a result, the agency revised the position
description to require specialized experience including, but not limited to, the “statutes
and regulations governing the government civil works program [and] interpreting
environmental law.” Id.; IAF, Tab 5 at 43. The appellant argues that the position of
Deputy District Counsel did not require the specialized experience described above, and
there was “no objective reason for [the District Counsel] to need to change the position
6
¶9 On review, the appellant also challenges the administrative judge’s rulings
on evidence and discovery, arguing that the administrative judge prevented the
appellant from presenting evidence to support his allegation that the agency
manipulated the job description to limit the applicant pool and ensure the
nonpreference eligible’s selection. PFR File, Tab 4 at 9, 14, 19-20. The
appellant argues that he was better qualified than the selectee in all duties,
except for “legal advice pertaining to civil works project development,” and that
Supp. 1 to AR 690-200, chapter 213, paragraph 4-7(e)(2)(b) requires the agency
to select the best-qualified applicant. 4 PFR File, Tab 4 at 13, 17. However, the
appellant has not shown that the alleged errors by the administrative judge
prejudiced his substantive rights. See 5 C.F.R. § 1201.41(b)(3); see also Panter
v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (adjudicatory
error); Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)
(procedural error). VEOA does not empower the Board to reevaluate the merits
of the agency’s ultimate determination that the preference-eligible appellant is
not the best-qualified candidate for the position, which is what the appellant has
asked the Board to do. See Miller v. Federal Deposit Insurance Corporation,
121 M.S.P.R. 88, ¶ 12 (2014). How the agency weighs the appellant’s
[of] Deputy District Counsel in charge of contract claims and general litigation into a
position that requires Civil Works project develop[ment] or specialization in
environmental law.” PFR File, Tab 4 at 10-11. The appellant also alleged on appeal
that this alleged manipulation of the job description was a prohibited personnel
practice. IAF, Tab 1 at 5. The administrative judge correctly informed the appellant
that alleged prohibited personnel practices are not cognizable claims within a VEOA
appeal, and denied the appellant’s motion to compel discovery relating to the alleged
prohibited personnel practice. IAF, Tab 18 at 1-2.
4
In the alternative, the appellant also argues that the agency was required to select him
for the position because he was equally qualified as the selectee. See PFR File, Tab 4 at
15. DoDI 1442.02, Enclosure 3, paragraph 2(f)(l)(b), requires that selecting officials
“select the preference-eligible veteran as opposed to an equally well qualified,
nonpreference-eligible candidate.” PFR File, Tab 4 at 15; IAF, Tab 5 at 66. However,
the selection panel did not find the appellant equally well qualified as the nonpreference
eligible; therefore, the agency was not required to select the appellant based on his
status as a preference-eligible veteran. IAF, Tab 5 at 26-28.
7
experience and qualifications is beyond the Board’s review in this VEOA appeal.
See id., ¶ 9 see also Asatov v. Agency for International Development,
119 M.S.P.R. 692, ¶ 7 (2013) (the matter at issue in a VEOA appeal is not
whether a particular agency action is proper and should be sustained).
¶10 The appellant further argues on review that the administrative judge failed
to rule on his request for negative inferences from the agency’s refusal to
produce the position descriptions and evaluations of the former Deputy District
Counsels in addition to the selectee’s previous position descriptions and
evaluations. However, an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision. Panter,
22 M.S.P.R. at 282. We find that the alleged error did not harm the appellant’s
substantive rights because the administrative judge properly denied the
appellant’s motion to compel those documents as irrelevant in the context of his
VEOA appeal. See IAF, Tab 18 at 2, Tab 19 at 4.
¶11 We have reviewed the remainder of the appellant’s arguments on review
challenging the administrative judge’s findings of fact, but we discern no reason
to reweigh the evidence or substitute our assessment of the record evidence for
that of the administrative judge in this appeal. See PFR File, Tab 4 at 6-15.
Because the administrative judge’s finding that the agency did not violate the
appellant’s veterans’ preference rights is supported by the weight of the evidence
and the applicable law, we deny the petition for review. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
8
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 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
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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.
DISSENTING OPINION OF ANNE M. WAGNER
in
John F. Bazan v. Department of the Army
MSPB Docket No. SF-3330-13-4195-I-1
¶1 I respectfully dissent. Because the administrative judge’s rulings in this
Veterans Employment Opportunities Act (VEOA) appeal are based on an
incorrect legal standard, this appeal should be remanded for further adjudication.
¶2 The appellant, a preference-eligible veteran, filed a request for corrective
action under VEOA challenging his nonselection for the GS-14 General Attorney
position of Deputy District Counsel for the United States Army Corps of
Engineers. Initial Appeal File (IAF), Tab 1. He was one of three finalists
interviewed for the position by the selection panel. The panel, however, selected
a nonpreference-eligible candidate for the position. Id., Tab 5 at 22-25.
¶3 As the administrative judge found, the selection was made in accordance
with the Department of Defense Instruction (“DoDI”) 1442.02, dated
September 30, 2010, and Supplement 1 to Army Regulation 690-200, chapter
213, subchapter 4, dated March 4, 2004. IAF, Tab 5 at 57-94, Tab 6 at 4-12.
DoDI 1442.02 states, in part, that all Department of Defense (DoD) civilian
attorney positions below the level of the Senior Executive Service are excepted
service and, as such, are wholly exempted from the appointment procedures of
Part 302 of Title 5, Code of Federal Regulations. See IAF, Tab 5 at 66. The
administrative judge thus determined that the agency in this case was required to
follow the principles of veterans’ preference for the attorney position only “‘as
far as administratively feasible,’ to the extent of treating an applicant’s
veterans[’] preference ‘as a positive factor in all stages of the hiring process.’”
IAF, Tab 21, Initial Decision (ID) at 3 (quoting DoDI 1442.02, Enclosure 3,
paragraph 2(f)); see IAF, Tab 5 at 66. He stated that the foregoing interpretation
echoes the provisions of 5 C.F.R. § 302.101(c), which provide, for exempted
2
positions, that “each agency shall follow the principle of veteran preference as far
as administratively feasible,” as well as our reviewing court’s statement in
Patterson v. Department of the Interior, 424 F.3d 1151, 1159 (Fed. Cir. 2005),
that section 302.101(c) “means that an agency must consider veteran status as a
‘positive factor’ in reviewing applications.” ID at 3 n.2.
¶4 Applying the foregoing standard to the facts of this case, the administrative
judge determined that the agency discharged its administrative duty during the
selection process by considering the appellant’s status as a veteran as a positive
factor and properly documenting its reasons for selecting the nonpreference
eligible for the position. ID at 4-5. He therefore denied the appellant’s request
for corrective action, concluding that, under the circumstances and the applicable
regulations, the agency was not required to do more, and that its selection of
another candidate did not violate any of the appellant’s rights as a veteran or
under VEOA. ID at 5.
¶5 On review, the appellant contends, inter alia, that the administrative judge
erred in finding that the agency applied the principles of veterans’ preference as
far as administratively feasible and that it was irrelevant that the selecting official
may have considered his military service “in a generally positive way.” Petition
for Review (PFR) File, Tab 4 at 15. He also contends that the administrative
judge erred in failing to grant his motion to compel the agency to produce the
position descriptions and evaluations of former Deputy District Counsels as well
as those of the selectee. Id. at 19; see IAF, Tab 13. 5 The majority dismisses the
appellant’s arguments, agreeing with the administrative judge that the agency
applied principles of veterans’ preference as far as administratively feasible by
treating the appellant’s service as a positive factor, and finding that the
5
The administrative judge did not expressly rule on the appellant’s motion. He tacitly
denied the motion in the Summary of Telephonic Prehearing Conference, however,
which states that any argument or evidence regarding the appellant’s qualifications for
the job in question relative to those of the selectee is not relevant and will not be
considered. IAF, Tab 18 at 2.
3
administrative judge “properly denied the appellant’s motion to compel those
documents as irrelevant in the context of this VEOA appeal.” Majority Opinion
(Maj. Op.), ¶ 10.
¶6 I disagree on both counts. As the majority recognizes, the Office of
Personnel Management has elected to leave the details of applying veterans’
preference in hiring civilian attorneys to individual agencies. Maj. Op., ¶ 6; see
Jarrard v. Social Security Administration, 115 M.S.P.R. 397, ¶ 26 (2010), aff’d,
669 F.3d 1320 (Fed. Cir. 2012). Therefore, although 5 C.F.R. § 302.101(c)
provides that each agency shall follow the principle of veterans’ preference as far
as administratively feasible, each is granted broad discretion to determine the
limits of administrative feasibility. Jarrard, 115 M.S.P.R. 397, ¶¶ 25-26. Thus,
in Jarrard, the Board ruled that even if it were administratively feasible for the
agency to apply procedures similar or analogous to those in 5 U.S.C. § 3318, it
did not violate the appellant’s veterans’ preference rights by exercising its
discretion to apply the principles of veterans’ preference in another
administratively feasible way, i.e., by treating veterans’ preference status as a
“positive factor” in its selection process. Id., ¶¶ 25-27.
¶7 Unlike Jarrard, however, the agency here has made a determination that it
is administratively feasible—not only to consider veteran status as a “positive
factor”—but to also mandate that a selecting official “must” select a
preference-eligible as opposed to an equally well qualified,
nonpreference-eligible candidate. Specifically, Enclosure 3, paragraph 2(f) of
DoDI 1442.02 expressly provides that:
Excepted service DoD civilian positions are wholly exempted from
the appointment procedures in part 302 of title 5 . . . . However,
DoD Components to follow the principles of veterans’ preference in
hiring civilian attorneys as far as administratively feasible, as
provided for in this Instruction.
(1) Selecting officials must treat veterans’ preference
eligibility as a positive factor in all stages of the hiring process,
including the review process, when making a selection from a
4
job announcement or recruitment open to all sources or when
veterans’ preference is otherwise applicable as required by law.
* * *
(b) When making final selections . . . the selecting
official shall once again ascertain whether any of the
candidates are preference eligible. If all relevant
considerations for the position are deemed equal, the
selecting official must select the preference-eligible veteran
as opposed to an equally well qualified, non-preference
eligible candidate.
IAF, Tab 5 at 66 (emphasis added). Thus, per the agency’s directive, a selecting
official is required to select a preference-eligible as opposed to an equally
well-qualified, nonpreference-eligible candidate.
¶8 That being the case, the question of whether the appellant is equally
well-qualified to the selectee is directly related to his VEOA claim and the
information regarding his qualifications for the job in question relative to those
of the selectee was plainly relevant to whether, under the circumstances of this
case, the agency applied the principles of veterans’ preference “as far as
administratively feasible, as provided for in” DoDI 1442.02. See IAF, Tab 5 at
66. Indeed, if the appellant establishes that he was as or better qualified than the
nonpreference-eligible selectee, then his nonselection violates his veterans’
preference rights even if the agency can demonstrate that it considered his
preference-eligible status as a generally positive factor. 6
6
The relevance of the information the appellant seeks is further underscored by the
initial decision itself, in which the administrative judge concluded, without citation to
any evidence in the record, that “there is ample evidence that the agency fully
considered the qualifications of all the candidates, and that it properly documented its
reasons for finding [the selectee] to be better suited to the job than” the other
applicants. ID at 4. Moreover, this statement cannot be reconciled with the
administrative judge’s prior determination that evidence regarding the appellant’s
qualifications for the job in question relative to those of the selectee is not relevant and
would not be considered. The administrative judge clearly did consider this issue. The
appellant was therefore entitled to engage in discovery and to have the opportunity to
present evidence and argument concerning the issue.
5
¶9 Accordingly, the administrative judge’s initial decision denying corrective
action was in error. This appeal should be remanded for further development of
the record and a new determination concerning the appellant’s request for
corrective action under the correct legal standard.
______________________________
Anne M. Wagner
Vice Chairman