Marvin C. Arnold v. Department of the Army ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARVIN C. ARNOLD, DOCKET NUMBER
Appellant, DC-3330-13-0066-B-1
v.
DEPARTMENT OF THE ARMY, DATE: September 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Marvin C. Arnold, Spring Lake, North Carolina, pro se.
Tracy A. Allred, APO/AE Europe, 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 the appellant’s request for corrective relief 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 GS-12 in the agency’s Family Advocacy Office, filed an
appeal under the VEOA alleging that the agency violated his veterans’ preference
rights by failing to accord him veterans’ preference in a competition for
promotion. MSPB Docket No. DC-3330-13-0066-I-1, Initial Appeal File (IAF),
Tab 1. The administrative judge dismissed the appeal for lack of jurisdiction,
finding that the appellant had not met the jurisdictional requirement that he
exhaust his administrative remedies with the Department of Labor (DOL). IAF,
Tab 7, Initial Decision. On petition for review, the appellant established that he
had exhausted his administrative remedies with regard to his nonselection under
Vacancy Announcement AP-2013-0003-VPH. MSPB Docket No. DC-3330-13-
0066-I-1, Petition for Review (PFR) File, Tab 1. The Board found that the
appellant had established jurisdiction and remanded the appeal for further
adjudication, including a determination of “to which job posting the exhaustion
letter applies.” PFR File, Tab 7.
¶3 On remand, the administrative judge found that the exhaustion letter applied
to Vacancy Announcement EUJJ12726235689646R (689646) based on the
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agency’s identifying the vacancy at issue and the appellant’s confirmation.
MSPB Docket No. DC-3330-13-0066-B-1, Remand Appeal File (RAF), Tab 8,
Remand Initial Decision (RID) at 1-2. She also found that the vacancy at issue
was a merit promotion announcement, and as such, the appellant was not entitled
to veterans’ preference points in the selection process. RID at 3. Thus, she found
that the appellant failed to show that his rights to veterans’ preference were
violated when he was not selected for the vacancy that he identified. RID at 4.
¶4 In his petition for review, the appellant suggests that the administrative
judge may have erred in finding that the vacancy at issue in this appeal was
689646. MSPB Docket No. DC-3330-13-0066-B-1, Remand Petition for Review
File, Tab 1. He suggests that the vacancy may have been 651668. As explained
below, we find that the appellant’s assertion does not rise to a nonfrivolous
allegation of fact, and careful examination of the record, including the agency’s
evidence, establishes that Vacancy Announcement 689646 was the subject of
DOL’s letter to the appellant indicating that he had exhausted his administrative
procedures. Cf. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (to
the extent that the agency’s evidence constitutes mere factual contradiction of the
appellant’s otherwise adequate nonfrivolous factual allegation, the Board may not
weigh evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive).
¶5 Below, the agency indicated that the appellant had applied for positions
under two Vacancy Announcements, identified as 689646 and 651668. RAF,
Tab 7. The agency stated that the appellant filed complaints with DOL regarding
both vacancies and that DOL dismissed the complaint regarding Vacancy
Announcement 651668 as untimely filed. Id. The agency references a
submission in another Board appeal filed by the appellant, Arnold v. Department
of the Army, MSPB Docket No. DC-3330-13-0139-I-1, as establishing that DOL
dismissed the appellant’s complaint regarding Vacancy Announcement 651668 as
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untimely, and thus DOL’s letter finding that the appellant exhausted his
administrative procedures must apply to Vacancy Announcement 689646.
¶6 The agency failed to submit into the record in this appeal the submission
that it references. However, the Board has held that it is within the scope of its
authority to take official notice of the evidence in an appellant’s prior appeal.
See McNeel v. Office of Personnel Management, 113 M.S.P.R. 356, ¶ 7 n.1.
(2010); see also Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447,
454 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). We have reviewed the
submission that the agency references. Included with that submission is a letter
to the appellant from DOL informing him that his complaint was untimely filed.
MSPB Docket No. DC-3330-13-0139-I-1, IAF, Tab 3. Also included is a copy of
an email from DOL to the agency about the appellant’s untimely complaint
regarded Vacancy Announcement 651668. Id; cf. Gingery v. Office of Personnel
Management, 119 M.S.P.R. 43, ¶ 19 (2012) (the appellant’s request for corrective
action under VEOA must be denied because he failed to meet the time limit for
filing a complaint with the Secretary of Labor under 5 U.S.C. § 3330a(a)(2)(A)).
The email also establishes that Vacancy Announcement AP-2013-0003-VPH, the
vacancy announcement referenced in the letter to the appellant from DOL upon
which the Board based its finding that the appellant established jurisdiction over
his appeal, and Vacancy Announcement 689646 are the same announcement. We
find that the administrative judge properly found that his appeal involved
Vacancy Announcement 689646.
¶7 The appellant also asserts on petition for review, as he did below, that the
agency violated his rights as a veteran in failing to select him for the GS-13
Supervisory Social Worker position in Vacancy Announcement 689646.
Preference eligibles and other specified veterans are guaranteed the right to
compete under merit promotion procedures. See Brandt v. Department of the Air
Force, 103 M.S.P.R. 671, ¶¶ 9-15 (2006). However, unlike in the competitive
examination process, preference-eligible veterans such as the appellant are not
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entitled to any point preferences in the merit promotion process. See Perkins v.
U.S. Postal Service, 100 M.S.P.R. 48, 51 (2005). Here, the appellant was clearly
allowed to compete for the position at issue, and his name was among those
forwarded to the selecting official for consideration. RAF, Tab 7 at 16 of 19. We
therefore find that the administrative judge properly found that the agency did not
violate the appellant’s veterans’ preference rights in the selection process under
Vacancy Announcement 689646.
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
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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.