Joel Valcin v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL VALCIN, DOCKET NUMBER
Appellant, AT-3330-16-0681-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 27, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joel Valcin, Saint Cloud, Florida, pro se.
Margaret L. Baskette, Clearwater, Florida, 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
dismissed his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 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). For the reasons set forth below, we DENY the appellant’s petition
for review, VACATE the initial decision dismissing the appellant’s VEOA appeal
for lack of jurisdiction, and FIND that the Board has jurisdiction over the
appellant’s VEOA claim; however, we DENY the appellant’s request for
corrective action under VEOA on the merits.
BACKGROUND
¶2 On January 19, 2016, the appellant applied for a Mail Handler Assistant
position with the agency. Initial Appeal File (IAF), Tab 5 at 10-15, 18-19. It
appears that on or about June 28, 2016, the appellant was notified that he was not
selected for the position. See id. at 18-19; Petition for Review (PFR) File, Tab 1
at 21. On July 18, 2016, the appellant filed a Board appeal and attached a July 7,
2016 letter from the Department of Labor (DOL) that informed him that he did
not meet the eligibility requirements of the applicable provisions of veterans’
preference statutes and regulations under Title 5 of the U.S. Code and of his right
to appeal his case to the Board. IAF, Tab 1. He did not request a hearing. Id.
at 2. The administrative judge issued an order notifying the appellant of the
requirements to establish Board jurisdiction over his claim under VEOA and
ordering him to file statements and documentation addressing the timeliness of
his appeal, exhaustion of his DOL remedy, his status as a preference eligible, and
the statute or regulation relating to veterans’ preference that was violated. IAF,
3
Tab 3 at 2-8. The appellant did not respond to the order. IAF, Tab 7, Initial
Decision (ID) at 2.
¶3 The agency moved to dismiss the appeal for lack of jurisdiction on the
ground that the appellant did not qualify as a preference eligible or veteran under
VEOA because he was not separated from the armed forces under honorable
conditions. IAF, Tab 5 at 4-9. The agency submitted the appellant’s application
for the Mail Handler Assistant position, in which he claimed a 10-point
preference and responded in the negative to questions asking whe ther he had ever
been discharged from the armed forces under other than honorable conditions or
convicted by court martial. Id. at 12-13. The application included a
DD Form 214, Certificate of Release or Discharge from Active Duty, showing
that the appellant served in the Army from September 27, 1999, to July 22, 2009,
and received a discharge for bad conduct following a court martial. Id. at 20. His
application also included a February 19, 2015 letter from the Department of
Veterans Affairs (DVA) showing the appellant as having two periods of service in
the Army, one from September 27, 1999, to December 2, 2006, which DVA
characterized as honorable service, and one from December 3, 2006 , to July 22,
2009, which DVA characterized as other than honorable service. Id. at 26.
Lastly, the application included a statement from the appellant stating that he had
joined the military on September 27, 1999, reenlisted twice, and was subsequently
found guilty of a false official statement during a court martial. Id. at 27.
¶4 The administrative judge issued an initial decision finding that the appellant
failed to make a nonfrivolous allegation that he was a preference eligible because
he was discharged under other than honorable conditions and dismissing the
appeal for lack of jurisdiction. ID at 4. The appellant timely filed a petition for
review in which he argued that he was entitled to veterans’ preference as a result
of two previous honorable discharges and submitted new documents to support
his claim. PFR File, Tab 1 at 3-15. The agency opposed the petition for review.
PFR File, Tab 3.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 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 regula tion 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
also Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015). Here,
the appellant has alleged a violation of a statute or regulation relating to veterans’
preference. IAF, Tab 1 at 1, PFR File, Tab 1 at 5. To establish Board
jurisdiction over a veterans’ preference VEOA claim, an 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. 5 U.S.C. § 3330a(a)(1)(A); Lazaro v.
Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
¶6 It is undisputed that the appellant exhausted his remedy with DOL and made
a nonfrivolous allegation that his nonselection for the Mail Handler Assistant
position occurred after 1998. IAF, Tab 1 at 4, PFR File, Tab 1 at 11. Based on
the record before her, the administrative judge found that the appellant did not
make a nonfrivolous allegation that he was a preference eligible within the
meaning of VEOA. ID at 4. As set forth below, we find that the evidence the
appellant submitted on review establishes a nonfrivolous allegation that he is a
preference eligible and that the Board has jurisdiction over his claim. PFR File,
Tab 1 at 5. However, we find that the appellant failed to establish by
preponderant evidence that he is a preference eligible and deny his claim on the
merits.
¶7 To establish that he is a preference eligible within the meaning of VEOA,
the appellant must meet one of the following definitions of a preference eligible:
(1) he is a veteran who served on active duty in the armed forces during one of
5
several statutorily proscribed periods and has been “discharged or released from
active duty in the armed forces under honorable conditions” 2; (2) he is a “disabled
veteran,” meaning he has served on active duty in the armed forces, has been
separated from the armed forces under honorable conditions, and has established
the present existence of a service-connected disability or is receiving
compensation, disability retirement benefits, or pension because of a public
statute administered by DVA or a military department; or (3) he has a relationship
to an individual as set forth in section 2108(3)(D)-(H). 3 5 U.S.C. § 2108(1)-(3);
Clark v. U.S. Postal Service, 118 M.S.P.R. 527, ¶ 7 (2012) (defining preference-
eligible veteran); Downs v. Department of Veterans Affairs, 110 M.S.P.R. 139,
¶ 10 (2008) (defining disabled veteran).
¶8 On review, the appellant does not dispute that he received a bad conduct
discharge in 2009, but he argues that he has two previous discharges under
honorable conditions that qualify him for veterans’ preference. PFR File, Tab 1
at 4-5. He has provided 10 documents submitted for the first time on review in
support of his argument, claiming that “[a]ll those documents were submitted
with my original filing,” but he has not provided any evidence that indicates the
documents were submitted with his initial appeal. 4 Id. at 4, 6-15.
¶9 The Board generally will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the
2
Under 5 U.S.C. § 2108(1) and (2) an exception is provided to the definitions of
veteran and disabled veteran for those individuals expecting to be discharged or
released from active duty under honorable conditions. However, this exception does
not apply to the appellant, as he was discharged from the Army prior to the employment
application at issue. See 5 U.S.C. § 2108a.
3
The appellant has neither asserted nor supplied any evidence that shows the third
definition applies to him.
4
The remaining documents are duplicative of information in the Initial Appeal File.
PFR File, Tab 1 at 10-11, 14. One of the remaining documents appears to show that the
appellant was not selected for a second position with the agency; however, he did not
raise this action below, and it is not before the Board for adjudication. Id. at 1, 12.
6
record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). However, the issue of the Board’s
jurisdiction is always before the Board and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Simnitt v.
Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010). We accordingly
consider the appellant’s additional documentation, which include s certificates of
honorable discharge from the Army dated December 2, 2002 , and October 25,
2005; certificates of reenlistment in the Army dated December 3, 2002, and
October 26, 2005; and letters from DVA dated August 31, 2014, and September 8,
2016, that state that the appellant “separated under honorable conditions from
active duty military service” and is “entitled to compensation for service-
connected disability(ies) which are at least 30 percent or more disabling.” PFR
File, Tab 1 at 6-9, 13, 15.
¶10 To establish Board jurisdiction over his VEOA claim, the appellant need not
prove that he is a preference eligible but must make an a ssertion that, if proven,
could establish that he is a preference eligible. See 5 C.F.R. § 1201.4(s) (defining
nonfrivolous allegation); Badana v. Department of the Air Force, 104 M.S.P.R.
182, ¶ 10 (2006). We find that the appellant has submitted sufficient evidence on
review to make a nonfrivolous allegation that he is a preference eligible and that
his rights as a preference eligible were violated. Therefore, we find that the
Board has jurisdiction over his claim. See Elliott v. Department of the Air Force,
102 M.S.P.R. 364, ¶ 8 (2006) (finding that an appellant’s allegation, in general
terms, that his veterans’ preference rights were violated is sufficient to meet the
nonfrivolous allegation standard).
¶11 Upon review of the merits of the appellant’s claim, however, we find that
the appellant cannot demonstrate that he is a preference eligible within the
meaning of VEOA because he cannot establish by preponderant evidence that he
was separated from the Army under honorable conditions. We previously have
held that if an individual is separated from a qualifying period of military service
7
under honorable conditions, a subsequent discharge un der other than honorable
conditions does not necessarily disqualify him from preference-eligible status
under 5 U.S.C. § 2108. Clark, 118 M.S.P.R. 527, ¶ 10; Dooley v. Tennessee
Valley Authority, 43 M.S.P.R. 462, 467 (1990). Here, however, the appellant was
not separated from a qualifying period of military service under honorable
conditions. The appellant’s DD Form 214 shows that he served continuously on
active duty in the Army from September 1999 to July 2009, a period just short of
10 years and received a bad conduct discharge. IAF, Tab 5 at 20. We find the
DD Form 214 controlling as to the calculation of the appellant’s period of active
duty service and the description of his separation from the Army. See Neighoff v.
Department of Homeland Security, 122 M.S.P.R. 86, ¶ 9 (2015) (finding the DD
Form 214 controlling as to the date of the appellant’s release from active duty);
32 C.F.R. § 45.2(b) (2016) (providing that the DD Form 214 “record[s] and
report[s] the transfer or separation of military personnel from a period of active
duty” and “will provide . . . [a]ppropriate governmental agencies with an
authoritative source of information which they require in the administration of
Federal and State laws applying to personnel who have been discharged,
otherwise released, or transferred to a Reserve component while on active duty”) .
The appellant’s DD Form 214 does not support the conclusion that he was
separated from active duty under honorable conditions. IAF, Tab 5 at 20.
¶12 Accordingly, although we find that the Board has jurisdiction over the
appellant’s claim and vacate the initial decision dismissing it for lack of
jurisdiction, we find that he is not a preference eligible and deny his request for
corrective action under VEOA on the merits. 5
5
Should the appellant believe there is an error in his DD Form 214, he may seek
correction through the appropriate military department’s Board of Corrections for
Military Records. See Department of Defense Instruction 1336.01, Certificate of
Release or Discharge from Active Duty, Enclosure 3, ¶ 5.b (Jan. 23, 2019).
8
NOTICE OF APPEAL RIGHTS 6
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 situation 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).
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:
6
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.
9
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
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
10
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
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
11
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 appeals of
competent jurisdiction. 7 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 websi te 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.
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction 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 wi th the U.S. Court 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.
12
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.