Lameia Solomon v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAMEIA SOLOMON, DOCKET NUMBER
Appellant, DA-3330-16-0161-I-1
v.
DEPARTMENT OF VETERANS DATE: June 30, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lameia Solomon, Choctaw, Oklahoma, pro se.
Brandi M. Powell, New Orleans, Louisiana, for the agency.
Ouida F. Adams, Shreveport, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed in part her appeal under the Veterans Employment Opportunities Act of
1998 (VEOA) for lack of jurisdiction and denied her request for corrective action
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
as to her remaining claims. Generally, we grant petitions such as this one only in
the following circumstances: 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
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). After fully
considering the filings in this appeal, 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).
BACKGROUND
¶2 Effective November 2, 2014, the agency appointed the appellant to the
position of Voucher Examiner, GS-6, under Vacancy Announcement FG-14-TS-
1179158-BU, at the agency’s Alexandria, Virginia Medical Center. Initial Appeal
File (IAF), Tab 16 at 7. The agency’s letter notifying the appellant of this
appointment indicated that it was a career-conditional appointment, IAF, Tab 16
at 5, but the Standard Form 50 (SF-50) issued shortly thereafter indicated that the
appointment was made to the excepted service pursuant to the Veterans
Recruitment Appointment (VRA) authority, 2 id. at 7.
¶3 Over the course of the following year, the appellant applied for several
positions within the agency. IAF, Tab 2 at 34-53, 60-65; Tab 8 at 8. For two of
the positions, the appellant submitted applications before the agency issued the
vacancy announcements. IAF, Tab 2 at 17, 26, 34-53, 60-65. Nonetheless, the
2
38 U.S.C. § 4214 is the statutory authority for VRA appointments.
3
agency considered her applications but determined that she lacked the level of
specialized experience required for the positions. Id. at 64-65; IAF, Tab 8 at 28,
Tab 45 at 5-6. For a third application, the agency considered her submission, but
found that she lacked any background in clinical administration as required by the
vacancy announcement. IAF, Tab 3 at 4, Tab 37 at 8. For the fourth available
position, the agency already had determined that the appellant was not qualified
for the job when it reviewed her application prior to the vacancy announcement.
IAF, Tab 21 at 3, 6-10. Thus, the appellant was not selected for any of the four
positions.
¶4 In December 2015, the appellant filed a VEOA appeal with the Board
arguing that the agency deterred her from applying for other vacancies when it
changed her initial appointment from a career-conditional appointment to an
excepted-service appointment under the VRA and that it was inconsistent in its
statements of eligibility criteria for other positions. IAF, Tab 1 at 5, Tab 8 at 2-3;
Tab 16 at 3-7. The appellant filed several submissions concerning the vacancies,
her communications with agency employees, and her applications. IAF, Tabs 1-4,
8-10, 16, 18, 21. Subsequently, the administrative judge issued orders on whether
the Board had jurisdiction over the appeal under either the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA) or the Whistleblower Protection
Enhancement Act of 2012 (WPEA). IAF, Tabs 32-33.
¶5 The appellant responded to the USERRA jurisdictional order , again
claiming that the agency unlawfully altered her SF-50 for the Voucher Examiner
appointment to show that she received a VRA appointment, which hindered her
ability to be considered for other vacancies. IAF, Tab 38 at 3. In response to the
WPEA jurisdictional order, the appellant submitted correspondence she had had
with the Office of Special Counsel (OSC) regarding a complaint she filed in
December 2015. IAF, Tab 40 at 8-12. She also alleged that she made protected
4
disclosures that the agency was in violation of the veterans’ preference statutes or
regulations under VEOA. Id. at 4.
¶6 The appeal continued through its normal course, but in an order and
summary of a close-of-record conference, the administrative judge stated that she
would separately address the appellant’s USERRA and WPEA claims. IAF,
Tab 52 at 2 n.1. The appellant filed a timely objection to the administrative
judge’s decision arguing that the agency had not contested the USERRA and
WPEA claims, as it had failed to respond to any of the related pleadings. IAF,
Tab 51 at 3.
¶7 On July 26, 2017, the administrative judge issued an initial decision
dismissing the appeal in part for lack of jurisdiction and denying corrective action
under VEOA as to the appellant’s remaining claims. IAF, Tab 57, Initial
Decision (ID). Specifically, the administrative judge found that the appellant
failed to exhaust her administrative remedies with the Department of Labor
(DOL) concerning her grievances with two of the vacancies. ID at 4-6 (citing
5 U.S.C. § 3330a(a)(2)(A); Gingery v. Department of the Treasury, 110 M.S.P.R.
83, ¶ 14 (2008)). Regarding the remaining claims, the administrative judge found
that the appellant established jurisdiction over them, ID at 6-8, but that nothing in
the VRA appointment authority for her initial position required that the agency
select the appellant for any of the vacancies for which she applied and that,
therefore, she was not entitled to corrective action under VEOA, ID at 8-9. 3
3
The administrative judge also briefly discussed the second type of claim provided for
by VEOA at 5 U.S.C. § 3304(f)(1), which states that preference eligible 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
procedures. ID at 6-7. The administrative judge found this provision inapplicable to
the instant case because the agency did not accept applications from outside its own
workforce for any of the vacancies at issue. ID at 9-10.
5
¶8 At the end of the initial decision, the administrative judge included a
footnote addressing the alleged USERRA and WPEA claims. ID at 10 n.10. She
summarized the relevant pleadings and the appellant’s objection to the separ ate
docketing of the claims. 4 Id. She also stated that “the Board does not have
jurisdiction under VEOA to consider these claims.” Id. (citing Ruffin v.
Department of the Treasury, 89 M.S.P.R. 396, ¶¶ 10-11 (2001)). The
administrative judge again reminded the appellant that if she still wished for the
Board to address these claims, she could file new, separate appeals with the
Board. Id.¶9 The appellant has filed a petition for review arguing that the Board has
jurisdiction to review her USERRA and WPEA claims. Petition for Review
(PFR) File, Tab 1 at 5-7. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 The appellant does not appear to challenge any of the administrative judge’s
findings concerning the VEOA claims. Id. We have reviewed the record, and we
find no reason to disturb those findings here. Regarding the alleged USERRA
and WPEA claims, we note as an initial matter that, although the administrative
judge stated in the initial decision that the Board does not have jurisdiction under
VEOA to consider USERRA or WPEA claims, ID at 10 n.10, she nonetheless
issued jurisdictional orders on those potential claims to provide the appellant with
notice of what is required to establish jurisdiction over those claims independent
4
Based on our search of Board filings, it does not appear than an IRA or USERRA
appeal concerning these claims was docketed. The appellant did file IRA appeals in
2017 and 2019, but these seem to be based on later OSC complaints. See Solomon v.
Department of Veterans Affairs, MSPB Docket No. DA-1221-18-0120-W-1; Solomon v.
Department of the Army, MSPB Docket No. DA-1221-19-0439-W-1. As to the 2017
IRA appeal, the administrative judge issued an initial decision denying corrective
action. Solomon v. Department of Veterans Affairs, MSPB Docket No. DA-1221-18-
0120-W-1, Initial Decision (Oct. 2, 2018). The administrative judge issued an initial
decision dismissing the latter appeal for lack of jurisdiction. Solomon v. Department of
the Army, MSPB Docket No. DA-1221-19-0439-W-1, Initial Decision (Aug. 22, 2019).
Both matters are now final.
6
of VEOA jurisdiction, IAF, Tabs 32-33. Therefore, it is not clear from the record
whether these potential claims were dismissed for lack of jurisdiction.
¶11 Regardless, we have thoroughly reviewed the record, and we do not discern
any coherently articulated USERRA claim. Nonetheless, as the administrative
judge instructed, the appellant is within her rights to file a separate USERRA
appeal concerning any claim she believes she may have. Regarding the potential
WPEA claim, we recognize that the record contains correspondence with OSC
concerning a complaint that the appellant filed in 2015; however, it does not
appear that the complaint itself is contained in the record, nor is any
comprehensive documentation submitted to OSC detailing her grievances, leaving
the Board to speculate as to what issues were brought before that forum. IAF,
Tab 40 at 8-10. Further, although the record appears to include what purport to
be the appellant’s allegations concerning her protected disclosures, those
statements are intertwined with her arguments pertaining to her VEOA claim, and
the Board is unable to assess which statements are intended to support a WPEA
claim and which are intended to support a VEOA claim. Id. at 4-7. Moreover,
we are unable to discern from the record whether these statements were provided
to OSC or whether they were submitted in response to the administrative judge’s
jurisdictional order.
¶12 We remind the appellant that it is not the Board’s obligation to construe and
make sense of allegations that are set forth at various parts of a voluminous case
file. Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002).
Rather, the affirmative responsibility to present evidence and argument is that of
the parties. Id. Further, the appellant is required to articulate her claims with
reasonable clarity and precision. Id. We find that the appellant has failed to do
so here, as her WPEA-related submissions (and by extension, her arguments) are
confusing and do not present a clear representation of what she is attempting to
claim. Therefore, as with her USERRA claim, should she wish to pursue a WPEA
claim based on her 2015 OSC complaint, she may do so separately.
7
¶13 We have considered the appellant’s arguments on review, but we conclude
that a different outcome is not warranted. Accordingly, we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS 5
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).
5
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 notic e, the
Board cannot advise which option is most appropriate in any matter.
8
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:
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 partic ular
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. 420 (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
9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and 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
10
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
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. 6 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 website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
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 with 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.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.