Steven J. Launer v. Department of the Air Force ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN J. LAUNER, DOCKET NUMBER
Appellant, DE-3330-14-0125-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 25, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven J. Launer, Cheyenne, Wyoming, pro se.
Basil R. Legg, Jr., Joint Base Andrews, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, 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 of 1998 (VEOA). Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 filed an appeal with the Board alleging that the agency
violated his veterans’ preference rights when it did not select him for the position
of Motor Vehicle Operator, WG-08, under vacancy announcement number
4Z-AFPC-970447-947974-SWW. Initial Appeal File (IAF), Tab 1. After finding
that the appellant had established jurisdiction and timely filed his appeal, the
administrative judge ordered the parties to show cause why the Board should not
decide the appeal on the written record. 2 IAF, Tab 12. After considering the
appellant’s response, IAF, Tab 13, the administrative judge denied the appellant’s
request for corrective action because the record showed that the agency accepted
applications for the position from individuals outside its own workforce under
merit promotion procedures and the agency had allowed the appellant to compete
for the position, IAF, Tab 14, Initial Decision (ID) at 5-6. The administrative
judge also found unpersuasive the appellant’s argument that the agency was
2
The Board may decide an appeal under VEOA on the written record without holding a
hearing when, like here, there is no genuine dispute of a material fact. See Williamson
v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 8 (2007).
3
required to rate and rank outside applicants if it made a selection for the position
from among that group. ID at 7-9.
¶3 In his timely-filed petition for review, the appellant reiterates his argument
that if the agency chooses to make a selection that does not meet the criteria of a
merit promotion, i.e., a promotion, demotion, transfer, or reinstatement, then it
must revert to filling the position as a competitive status selection and to apply
veterans’ preference regulations in doing so. Petition for Review (PFR) File,
Tab 1 at 1-2. The appellant further asserts that, if two or more of the applicants
for a position are Veterans Recruitment Appointment (VRA) 3 eligible, and at least
one of those applicants is preference eligible, then application of veterans’
preference is mandatory. Id. at 3. The agency did not respond.
¶4 When an agency accepts applications from individuals outside its own
workforce under merit promotion procedures, it must allow “preference eligibles
and veterans who have been separated from the armed forces under honorable
conditions after 3 years or more of active service” the opportunity to compete.
5 U.S.C. § 3304(f)(1). As the administrative judge correctly found, the agency
accepted applications from outside its workforce under merit promotion
procedures. ID at 5; see IAF, Tab 5 at 43-44; see also Washburn v. Department
of the Air Force, 119 M.S.P.R. 265, ¶¶ 2-5 (2013). The record reflects that the
agency found the appellant qualified, referred him on the certificate of eligibles,
but did not select him for the position in question. IAF, Tab 5 at 7, 23, 25-27.
Thus, as the administrative judge correctly found, the record reflects that the
agency allowed the appellant to compete for the position on the same basis as all
the other candidates. ID at 6 (citing Harellson v. U.S. Postal Service,
113 M.S.P.R. 534, ¶ 11 (2010)). The statute, 5 U.S.C. § 3304(f)(1), requires
3
We also note that, although the vacancy announcement indicated that VRA eligible
individuals may apply for the position in question, IAF, Tab 5 at 43, there is no
evidence that the agency used this alternative selection process to fill the position, see
5 C.F.R. part 307.
4
nothing more. See, e.g., Miller v. Federal Deposit Insurance Corporation,
121 M.S.P.R. 88, ¶ 11 (2014) (in a right to compete VEOA appeal under 5 U.S.C.
§ 3304(f)(1), the Board does not determine whether a preference eligible is
qualified for a particular position of federal employment or whether he should
have been selected for the position in question, but rather only assesses whether
the preference eligible was permitted to compete for the position on the same
basis as other candidates). Additionally, the appellant offers no authority for his
argument that veterans’ preference should apply under these circumstances. PFR
File, Tab 1 at 3. Moreover, he concedes as much in his petition for review when
he calls “for new case law to be decided to correct this” interpretation of the
relevant statutory and regulatory provisions. Id. at 1.
¶5 Ultimately, the appellant’s arguments fail because the agency filled the
vacancy using a merit promotion process and the appellant was allowed to
compete for the vacancy, but he was not entitled to veterans’ preference in the
selection process. See, e.g., Graf v. Department of Labor, 111 M.S.P.R. 444, ¶ 5
n.1 (2009) (an employee is not entitled to veterans’ preference in the merit
promotion process). We therefore affirm the administrative judge’s finding that
the agency did not violate the appellant’s veterans’ preference rights.
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.
5
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
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.