Philip M. Modeste v. Department of Veterans Affairs , 2014 MSPB 44 ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 44Docket No. AT-3330-13-0146-I-1
Philip M. Modeste,
Appellant,
v.
Department of Veterans Affairs,
Agency.
June 19, 2014
Philip M. Modeste, Minneola, Florida, pro se.
Dana C. Heck, Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision which
granted the appellant’s request for corrective action in his Veterans Employment
Opportunities Act of 1998 (VEOA) appeal. For the reasons that follow, we
DENY the agency’s petition for review and AFFIRM the administrative judge’s
initial decision granting the appellant’s request for corrective action under
VEOA.
2
BACKGROUND
¶2 The appellant, an honorably discharged veteran with over 6 years of
military service, applied for a position with the agency as a Medical
Administrative Specialist (Trainee). Initial Appeal File (IAF), Tab 9 at 25-39.
The agency’s vacancy announcement solicited applications from all “United
States Citizens” and noted that the position was a full-time temporary position
not-to-exceed (NTE) 2 years. IAF, Tab 5, Subtab 3. The agency did not select
the appellant for the position and, in an undated letter, informed him that it had
selected a current agency employee. IAF, Tab 11 at 25.
¶3 The appellant filed a complaint with the Department of Labor alleging a
violation of his right to compete under VEOA, IAF, Tab 11 at 14-16, and
subsequently filed a timely VEOA appeal with the Board, IAF, Tab 1. Following
a hearing, the administrative judge issued an initial decision finding that the
agency violated the appellant’s right to compete under 5 U.S.C. § 3304 (f)(1) by
placing applicants into different groups for consideration based upon their status
as internal or external applicants without regard to their preference eligibility or
veterans’ status. See Initial Decision (ID) at 4-5. At the hearing, the agency’s
human resources officials testified that, pursuant to the agency’s master labor
agreement, applicants were divided into three groups—those who worked at the
facility which posted the job vacancy; those who worked for the agency outside
of the facility; and all others. Id. The administrative judge rejected the agency’s
claim that the master labor agreement provided a valid basis for not considering
the appellant’s application, id. at 6, 8-9, and he further found that the agency
admitted that it never considered the appellant’s application because it was not
included among the group of applications from which the selectee was chosen, id.
at 4-5 (explaining that the selectee was a current agency employee and that the
3
agency did not review the applications of external candidates). 1 Based upon the
agency’s admissions, the administrative judge found that the agency violated the
appellant’s right to compete for a vacant position under 5 U.S.C. § 3304 (f)(1),
and he ordered the agency to reconstruct its hiring process. Id. at 12.
¶4 The agency has filed a petition for review raising two challenges to the
administrative judge’s initial decision. See Petition for Review (PFR) File,
Tab 1. First, citing an Office of Personnel Management (OPM) website, the
agency argues that it did not violate the appellant’s right to compete because the
position at issue was a temporary position and that the VEOA “can only be
utilized when filling permanent, competitive service positions.” PFR File, Tab 1
at 4. Second, the agency asserts that the appellant’s appeal is moot because, as a
matter of law, the appellant is not entitled to the relief which the administrative
judge ordered. Id. at 5, 6-9. The appellant has not responded to the agency’s
petition for review. For the reasons that follow, we find that the agency’s
arguments are unpersuasive.
ANALYSIS
The administrative judge properly ordered corrective action based upon a
violation of the appellant’s right to compete under 5 U.S.C. § 3304 (f)(1).
¶5 We have reviewed the initial decision and agree with the administrative
judge’s well-reasoned and thorough analysis finding a violation of the appellant’s
right to compete under 5 U.S.C. § 3304 (f)(1). At the hearing, several of the
agency’s human resources officials confirmed that the agency solicited
applications from individuals both within and outside of its workforce and that, in
1
Although the Standard Form (SF)-50 the appellant submitted in connection with his
application reflected that he was not an agency employee, he was actually serving in a
term position with the agency at a different facility at the time of his application. ID
at 5; IAF, Tab 9 at 39 and Tab 11 (SF-50 appointing appellant to term position effective
May 2012). We find that this does not affect the outcome of this appeal, given the
nature of the agency’s violation of 5 U.S.C. § 3304(f)(1).
4
considering those applications, it segregated applicants into different groups
based upon the applicants’ employment status with the agency without regard to
their preference eligibility or veterans’ status. ID at 4-5. The agency’s
witnesses, moreover, confirmed that the appellant’s application for employment
was not among those first considered because it did not reflect that the appellant
was an employee of the agency and that the agency made a selection for the
position without reviewing the applications from each group. Id. at 4-5 (citing
hearing testimony).
¶6 We concur with the administrative judge that such a fragmentation of
applications, without regard to the applicants’ preference eligibility or veterans’
status, is contrary to 5 U.S.C. § 3304 (f)(1). See id. at 7-10; Boctor v. U.S. Postal
Service, 110 M.S.P.R. 580 , ¶¶ 6-9 (2009) (finding that the agency violated the
appellant’s right to compete under 5 U.S.C. § 3304 (f)(1) when it solicited
applications from outside of its workforce but failed to consider the appellant’s).
We further agree with the administrative judge that the agency’s reliance on its
master labor agreement as a justification for its actions does not excuse the
agency’s violation of the appellant’s right to compete under 5 U.S.C.
§ 3304 (f)(1). Cf. Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175 ,
¶ 10 (2010) (an agency’s internal policy may not override applicable statutes,
including 5 U.S.C. § 3304 (f)(1)); Boctor, 110 M.S.P.R. 580 , ¶ 9 (rejecting
agency’s claim that it was required to consider internal candidates before external
candidates under its internal procedures).
Section 3304(f)(1) provides a preference eligible or veteran a right to compete for
a vacant position, not just a permanent, competitive service position.
¶7 The agency argues on petition for review that the administrative judge
erred in ordering corrective action because the vacancy at issue was for a
temporary, NTE position and that the VEOA “can only be utilized when filling
permanent, competitive service positions.” PFR File, Tab 1 at 4. The agency
cites to an OPM website in support of its argument, which provides in relevant
5
part that VEOA “is a competitive service appointing authority that can only be
used when filling permanent competitive service positions.” Id. (citing
www.fedshirevets.gov/jobs/shav/index.aspx ).
¶8 Section 3304(f)(1) of Title 5 provides that
[p]reference eligibles or veterans who have been separated from the
armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion principles.
5 U.S.C. § 3304 (f)(1) (emphasis added). The statute’s text unambiguously
provides that a preference eligible or veteran shall not be denied the opportunity
to compete for “vacant positions,” and we find no support in the statutory text for
the limitation advanced by the agency that the appellant’s right to compete is
limited to competition for a vacant permanent position. See Benedetto v. Office of
Personnel Management, 32 M.S.P.R. 530 , 534 (1987) (the plain language of a
statute controls absent a clearly expressed legislative intention to the contrary),
aff’d sub nom. Horner v. Benedetto, 847 F.2d 814 (Fed. Cir. 1988).
¶9 The agency’s reliance on an OPM website in support of its argument does
not change our analysis. Although OPM regulations concerning veterans’
preference may be entitled to deference, informal information and guidance on an
OPM website which has not been issued under the notice-and-comment
rulemaking procedures used in promulgating regulations are not entitled to the
same deference accorded regulations. Jolley v. Department of Homeland
Security, 105 M.S.P.R. 104 , ¶ 13 (2007). While positions expressed in issuances
such as these may be entitled to some weight, the amount of weight to be given
depends in part on factors such as the consistency of the agency’s position on the
subject, the formality with which the position is expressed, and the
persuasiveness of the position. Id. We find that although the information cited
by the agency is on an OPM website, which is intended to assist veterans,
6
agencies, and the public understand and apply veterans’ preference laws, the
agency’s reliance on this information is misplaced.
¶10 First, the section of the OPM website cited by the agency is entitled
“Special Hiring Authorities for Veterans.” See PFR File, Tab 1 at 4 (citing OPM
website). The legal issue raised by the appellant in this appeal, however, is a
request for corrective action under the VEOA’s remedial mechanism, and the
appellant has not argued that he should have been appointed to the position in
question under a special hiring authority. See IAF, Tab 1; 5 U.S.C.
§ 3330a (a)(1)(B); Styslinger v. Department of the Army, 105 M.S.P.R. 223 , ¶ 13
n.6 (2007). The information provided by OPM on its website, therefore,
addresses when an agency can rely on an applicant’s preference eligibility or
veterans’ status in making a hiring decision and does not serve to restrict an
appellant’s right to compete for a vacancy under 5 U.S.C. § 3304 (f)(1). See, e.g.,
Augustine v. Department of Veterans Affairs, 88 M.S.P.R. 407 , ¶ 15 n.6 (2001)
(discussing the noncompetitive appointment of certain veterans under 5 U.S.C.
§ 3302 (f)(2) and 5 C.F.R. § 315.611 ).
¶11 Second, even if we were to read OPM’s website as suggesting that an
appellant has only a statutory right to compete for a permanent, competitive
service position, which we do not, we would find that this guidance would not be
entitled to deference because it is in clear contradiction to the text of the statute.
See, e.g., Jolley, 105 M.S.P.R. 104 , ¶ 14 (rejecting OPM VetGuide provision
interpreting § 3304(f)(1) because it includes no explanation for its interpretation
of 5 U.S.C. § 3304 (f)(1), and it refers to no supporting authority); see also
Vassallo v. Department of Defense, 121 M.S.P.R. 70 , ¶ 11 (2014) (finding OPM
VetGuide interpretation of term “agency” within 5 U.S.C. § 3304 (f)(1)
unpersuasive because of lack of legal analysis or support). As explained above,
the text of 5 U.S.C. § 3304 (f)(1) clearly provides a preference eligible or veteran
with the right to compete for “vacant positions” without qualification as to the
duration of those positions.
7
¶12 Lastly, we have reviewed the Board’s decisions applying 5 U.S.C.
§ 3304 (f)(1), and we find no support for the agency’s argument that an
appellant’s right to compete is limited to permanent positions of employment.
The Board has consistently held that “under the plain language of 5 U.S.C.
§ 3304 (f)(1), all covered individuals, including current employees and those
seeking initial federal appointments, must be permitted to compete when
applications will be accepted from persons outside the hiring agency’s
workforce.” Gingery, 114 M.S.P.R. 175 , ¶ 6. None of the Board’s decisions
hold or suggest that a preference eligible’s or veteran’s right to compete under
5 U.S.C. § 3304 (f)(1) is confined to competition for a permanent position of
federal employment.
The appellant’s appeal is not moot because the agency must comply with the
administrative judge’s initial decision ordering corrective action and the appellant
may be entitled to an award of damages.
¶13 Finally, we reject the agency’s argument that the appellant’s petition for
review should be denied as moot because “the agency cannot hire the Appellant
under the hiring authority of VEOA, which was the statutory basis on which he
appealed and upon which the Administrative Judge erroneously relied.” PFR
File, Tab 1 at 6. As explained above, we agree that the agency violated the
appellant’s right to compete by not considering his application under 5 U.S.C.
§ 3304 (f)(1). VEOA provides that, if the Board determines that an agency has
violated a statute or regulation relating to veterans’ preference, it “shall order the
agency to comply with such provisions.” 5 U.S.C. § 3330c ; Deems v.
Department of the Treasury, 100 M.S.P.R. 161 , ¶ 19 (2005). Accordingly, an
appellant whose veterans’ preference rights were violated concerning a selection
process is entitled to a selection process consistent with law. Lodge v.
Department of the Treasury, 109 M.S.P.R. 614 , ¶ 7 (2008). Because the agency
has not yet reconstructed its selection process, and because the appellant could
still request an award of damages, he has not yet received all of the relief to
8
which he may be entitled, and his appeal cannot be dismissed as moot. See, e.g.,
Williams v. Department of the Air Force, 111 M.S.P.R. 356 , 357 (2009).
¶14 In reconstructing its selection process, we note that the agency must
remove from the position in question any individual improperly appointed and
that the agency must engage in a real reconstruction process, not merely one that
is hypothetical. See Weed v. Social Security Administration, 110 M.S.P.R. 468 ,
¶¶ 8-10 (2009). In removing any individual from the position in question,
however, the agency need not remove the individual from federal service.
Id., ¶ 13.
ORDER
¶15 We ORDER the agency to reconstruct the selection process for the Medical
Administrative Assistant (Trainee) position, giving consideration to the appellant
and any other preference eligible or veteran consistent with 5 U.S.C.
§ 3304 (f)(1). See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed.
Cir. 1984). The agency must complete this action no later than 20 days after the
date of this decision.
¶16 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board's Order and of the actions it
took to carry out the Board's Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶17 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board's Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board's Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board's Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
9
¶18 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulation, section 1201.113(c) 5 C.F.R.
§ 1201.113 (c).
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324 (c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201 , 1202.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST DAMAGES
You may be entitled to be compensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. § 3330c (a); 5 C.F.R. §1208.25 (a). If you are entitled to such
compensation, and the violation is found to be willful, the Board has authority to
order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. § 3330c (a); 5 C.F.R. §1208.25 (a). You may file a petition seeking
compensation for lost wages and benefits or damages with the office that issued
the initial decision in your appeal WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION.
10
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 .
11
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.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE
VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.