Jeffrey Wittler v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY WITTLER, DOCKET NUMBERS
Appellant, AT-3443-15-0091-I-1
AT-3443-15-0260-I-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: September 15, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey Wittler, Lexington, South Carolina, pro se in Docket No.
AT-3443-15-0091-I-1.
Raymond Mitchell, Columbia, South Carolina, for the appellant in Docket
No. AT-3443-15-0260-I-1.
Edith W. Lewis, Esquire, Columbia, South Carolina, for the agency in
Docket No. AT-3443-15-0091-I-1. The agency did not designate a
representative in Docket No. AT-3443-15-0260-I-1.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decisions, which
dismissed his nonselection appeals for lack of jurisdiction. We JOIN these
appeals because we have determined that doing so will expedite processing of the
cases and will not adversely affect the parties’ interests. 5 C.F.R. § 1201.36.
¶2 Generally, we grant petitions such as this one only when: the 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 these appeals, 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 petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶3 The appellant, a GS-11 Electronics Technician with the agency, applied for
the position of Engineering Technician, GS-11. Upon review, the agency
determined that the appellant’s application would receive no further consideration
because his résumé was not in compliance with the requirements of the vacancy
announcement. Initial Appeal File (IAF) 0091, 2 Tab 1 at 7. On appeal, the
appellant challenged the agency’s decision, arguing that his application was
complete. Id. at 3.
2
The abbreviations IAF 0091 and IAF 0260 refer to the sequence numbers for the
docket numbers of the appellant’s two appeals.
3
¶4 The appellant also applied for the position of Supervisory Electronics
Technician, GS-12, but was not selected. IAF 0260, Tab 2; Tab 1 at 9. On
appeal, he challenged his nonselection and argued that it was in retaliation for an
equal employment opportunity (EEO) complaint he had filed that included the
hiring official. IAF 0260, Tab 1 at 6.
¶5 In acknowledging both appeals, the administrative judge advised the
appellant that the Board generally lacks the authority to address a nonselection
claim except where the unsuccessful candidate alleges that the agency’s decision
was made in retaliation for his whistleblowing, the product of discrimination
based on uniformed service, or violative of the candidate’s veterans’ preference
rights. In each case, the administrative judge ordered the appellant to file
evidence and argument to prove that the action is within the Board’s jurisdiction.
IAF 0260, Tab 3; IAF 0091, Tab 2.
¶6 The administrative judge dismissed both appeals for lack of jurisdiction.
IAF 0091, Tab 4, Initial Decision (ID) 0091 at 1, 3; IAF 0260, Tab 4, ID 0260
at 1, 2. He found in each that the appellant had not filed a response to the
jurisdictional issue, ID 0091 at 2; ID 0260 at 2, and had not identified any
exception to the general rule that the Board lacks jurisdiction over nonselections.
ID 0091 at 2-3; ID 0260 at 2.
¶7 The appellant has filed petitions for review in both cases. Petition for
Review (PFR) File 0091, Tab 1; PFR File 0260, Tab 1 at 1, 11-19. The agency
has not responded.
¶8 The Board lacks direct jurisdiction under 5 U.S.C. § 7512 over an
employee’s nonselection for a position. E.g., Gryder v. Department of
Transportation, 100 M.S.P.R. 564, ¶ 9 (2005). Despite the general lack of
jurisdiction, however, an employee may appeal his nonselection for a position or
a promotion by other statutory means, such as under the Veterans Employment
Opportunities Act (VEOA) if he claims that the agency violated his rights under a
statute or regulation relating to veterans’ preference, or the Uniformed Services
4
Employment and Reemployment Rights Act (USERRA) if he claims
discrimination based on his uniformed service, or through an individual right of
action appeal if he claims retaliation for whistleblowing. Becker v. Department
of Veterans Affairs, 107 M.S.P.R. 327, ¶¶ 5-12 (2007).
¶9 Regarding the 0091 case, the appellant contends on review that he was
nonselected for promotion, but he does not argue that the nonselection was based
on any of the exceptions set forth above. He correctly states that the
administrative judge misstated the name of the position for which he had applied,
PFR File 0091, Tab 1 at 1; ID 0091 at 1, but the administrative judge’s error is of
no legal consequence because it did not adversely affect the appellant’s
substantive rights. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
¶ 7 (2010). Moreover, the appellant claims that he submitted below a response to
the jurisdictional order. However, he has not submitted a copy of that response
on review. Thus, we cannot consider any effect it might have had on the
administrative judge’s jurisdictional finding.
¶10 Regarding the 0260 case, the appellant also contends on review that he was
nonselected for a position, but, similarly, he does not argue that the nonselection
was based on any of the exceptions set forth above. PFR File 0260, Tab 1 at 1.
With his petition, he has submitted a copy of the response he claims he submitted
below, id. at 11-19, along with a facsimile cover sheet that suggests that he
indeed may have faxed the documents to the regional office 3 and so we will
review them now. The documents consist of a September 3, 2014 letter to the
appellant from the agency’s Office of Resolution Management regarding a notice
of the amendment of his EEO complaint, id. at 11-18, and a copy of his DD-214,
Certificate of Release or Discharge from Active Duty. Id. at 19. Even if the
letter supported the appellant’s claim that the selecting official in the instant
action was named in his EEO complaint, retaliation on that basis is not among the
3
The record does not reflect that the regional office received the documents at issue.
5
exceptions to the general rule that the Board lacks jurisdiction over
nonselections. 4 Because the appellant submitted his DD-214 below, IAF 0260,
Tab 2 at 11, it is not new evidence and therefore we need not consider it.
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
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
4
Under the Whistleblower Protection Enhancement Act, the Board’s IRA jurisdiction
extends to claims of retaliation for the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation concerning remedying a violation of
5 U.S.C. § 2302(b)(8) (retaliation for whistleblowing). 5 U.S.C. § 2302(b)(8)(A)(i). A
review of the letter the appellant submitted does not reflect that the EEO complaint
concerns remedying an alleged violation of § 2302(b)(8). Therefore, insofar as the
appellant alleges that the agency nonselected him in retaliation for his EEO complaint,
the Board would lack jurisdiction to consider such an allegation in the context of an
IRA appeal. Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
6
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 an appeal to the
United States 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 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.