Benjamin Huebschman v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN HUEBSCHMAN, DOCKET NUMBER
Appellant, DC-3330-19-0552-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 11, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Benjamin Huebschman , Beltsville, Maryland, pro se.
Steven Whittington , Esquire, Warren, Michigan, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
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). For the reasons discussed below, we
GRANT the appellant’s petition for review, REVERSE the initial decision, and
GRANT the appellant’s 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was honorably discharged from the U.S. Army after
approximately 7 years of active duty service. Initial Appeal File (IAF), Tab 4
at 6-8. On March 13, 2019, the agency posted a vacancy announcement for the
position of NH-4 Project Manager. IAF, Tab 6 at 9-16. The vacancy
announcement indicated that it was open to “Current Department of Army
Civilian Employees,” “Current Permanent Department of Defense (DOD) Civilian
Employee (non-Army),” “Interagency Career Transition Assistance Plan,” and
“Priority Placement Program (PPP), Program S (Military Spouse) registrant.” Id.
at 11. The appellant applied for the position, but on or about April 19, 2019, his
application was automatically rejected because he did not select an “area of
consideration,” i.e., one of the four categories listed above. IAF, Tab 1 at 5,
Tab 4 at 5, Tab 6 at 5. It appears that the appellant did not select an area of
consideration because he did not fall within any of these four categories. IAF,
Tab 5 at 5.
On April 30, 2019, the appellant filed a complaint with the Department of
Labor (DOL), arguing that, as an honorably discharged veteran, he was qualified
to apply for the position, and the agency should have considered his application.
IAF, Tab 1 at 7. On May 15, 2019, DOL closed its file and informed the
appellant of his right to file a Board appeal. Id. at 9.
The appellant timely filed a Board appeal and requested a hearing. IAF,
Tab 1. The administrative judge issued a jurisdictional order, informing the
appellant of the standards for establishing jurisdiction over a VEOA appeal and
ordering the parties to file evidence and argument on the issue. IAF, Tab 3. The
appellant responded, arguing that the agency violated his right to compete for the
Project Manager position under 5 U.S.C. § 3304(f)(1). IAF, Tab 4. The agency
also responded, arguing that it had “erroneously included the Interagency Career
Transition Assistance Plan (ICTAP) to the applicable Areas of Consideration”
and did not actually consider any ICTAP candidates. IAF, Tab 6 at 5-7.
3
Therefore, the agency argued, it did not actually consider any candidates
from outside its own workforce, and so the right to compete provisions of
5 U.S.C. § 3304(f)(1) did not apply. Id. at 6-7.
After considering the parties’ submissions, the administrative judge issued
an initial decision denying corrective action on the merits without a hearing.
IAF, Tab 7. She found that, although the appellant established jurisdiction over
his appeal, there was no dispute of material fact and the agency was entitled to
judgment as a matter of law. IAF, Tab 7, Initial Decision (ID) at 1-6.
Specifically, the administrative judge found that the inclusion of ICTAP
candidates in the vacancy announcement was a clerical error, the agency did not
actually accept applications from candidates outside its own workforce, and
therefore, the appellant did not have a right to compete for the position in
question under 5 U.S.C. § 3304(f)(1). ID at 1-6.
The appellant has filed a petition for review, arguing that the administrative
judge erred in denying his hearing request and in accepting the agency’s
unsupported allegations as true. Petition for Review (PFR) File, Tab 1 at 3-4,
6-7, 9-10. He disputes the veracity of the agency’s claim that its inclusion of
ICTAP candidates was a clerical error and argues that other areas of consideration
were outside the agency’s own workforce because they included military spouses
and non-Army DOD employees. Id. at 4, 6-8. The appellant also urges the Board
to reconsider its ruling in Vassallo v. Department of Defense, 122 M.S.P.R. 156,
aff’d, 797 F.3d 1327 (Fed. Cir. 2015). PFR File, Tab 1 at 10-15. The agency has
filed a response in opposition. PFR File, Tab 3.
ANALYSIS
To establish Board jurisdiction over a “right to compete” VEOA claim
under 5 U.S.C. § 3330a(a)(1)(B), an appellant must (1) show that he exhausted
his remedy with DOL and (2) make nonfrivolous allegations that (i) he is a
veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took
4
place on or after December 10, 2004, and (iii) the agency denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its own
workforce in violation of 5 U.S.C. § 3304(f)(1). Becker v. Department of
Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). The administrative judge in this
case found that the appellant satisfied all of these jurisdictional requirements, and
for the reasons explained in the initial decision, we agree. ID at 3-4.
To prevail on the merits of a right to compete claim, the appellant must
prove jurisdictional elements (2)(i), (ii), and (iii) by a preponderance of the
evidence. Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 19
(2010). In this case, there does not seem to be any dispute about the appellant’s
veteran status or the date of the action at issue. IAF, Tab 4 at 3, Tab 6 at 5-6.
Therefore, this appeal turns on whether the appellant can prove that the agency
denied him the opportunity to compete in a selection process in which the agency
was accepting applications from individuals outside its own workforce. The
administrative judge found that there was no dispute of material fact on this issue
in light of the agency’s assertion that the inclusion of ICTAP candidates was a
clerical error, and for that reason, she denied the appellant’s request for
corrective action without a hearing. ID at 1, 4-6. For the following reasons, we
disagree.
The Board may decide the merits of a VEOA appeal without a hearing
when there is no genuine dispute of material fact and one party must prevail as a
matter of law. Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5
(2009); see 5 C.F.R. § 1208.23(b) (stating that an administrative judge may
provide a hearing if the Board’s jurisdiction has been established over a timely
VEOA appeal). We agree with the administrative judge that these circumstances
are present in this case, but we find that it is the appellant who must prevail. As
explained above, the vacancy announcement was open to military spouses
5
registered under the agency’s Priority Placement Program, Program S. 2 IAF,
Tab 6 at 11. Registration in Program S is open to “spouses of active duty military
members of the U.S. Armed forces.” Department of Defense Priority Placement
Program (PPP) Handbook, § 14(C)(1) (July 2011). Some restrictions apply, but
there is no requirement that a Program S registrant must be a current Federal
employee, much less an employee of the agency. Id., § 14(C). We find that, in
soliciting applications from Program S registrants, the agency was accepting
applications from individuals outside its own workforce. Therefore, the appellant
had a right to compete for the position in question under 5 U.S.C. § 3304(f)(1),
and we find that the agency violated that right when it rejected his application.
Having thus found that the agency violated the appellant’s right to
compete, we decline his invitation to overrule Vassallo for the following reasons.
First, the Board’s ruling in Vassallo is not controlling as to the outcome of the
appeal, and the appellant could obtain no further relief in this case if the Board
were to revisit Vassallo at this time. See Thompson v. Department of the Army,
122 M.S.P.R. 372, ¶ 30 n.12 (2015) (declining to reach issues that would not
change the outcome of the appeal). Second, even if the Board were inclined to
overrule Vassallo, the United States Court of Appeals for the Federal Circuit has
affirmed the Board’s Opinion and Order in that case in a precedential decision,
both as to its reasoning and its result. PFR File, Tab 3 at 6; see Vassallo,
797 F.3d 1327. Precedential decisions of the Federal Circuit are controlling
authority for the Board, and the Board is bound to follow them unless they are
overruled by the court sitting en banc. Conner v. Office of Personnel
Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d per curiam, 620 F. App’x 892(Fed. Cir. 2015).
Because this appeal has been resolved on the grounds identified above, we
also decline to reach the following issues: (1) Whether the agency’s inclusion of
2
Unlike ICTAP, the agency has not alleged that the inclusion of registrants under
Program S was the result of any sort of clerical error.
6
ICTAP was, in fact, an error, a matter which the appellant disputes on review,
PFR File, Tab 1 at 6-8, 14; (2) whether the agency’s alleged clerical error would
have been material in any event, see Gingery v. Department of Veterans Affairs,
114 M.S.P.R. 175, ¶¶ 9-10 (2010) (explaining that when an agency solicited
external and internal candidates, it violated the appellant’s right to compete by
considering only internal candidates), overruled on other grounds by Oram v.
Department of the Navy, 2022 MSPB 30; Boctor v. U.S. Postal Service,
110 M.S.P.R. 580, ¶ 9 (2009) (same); and (3) whether the agency’s solicitation of
applications from current employees throughout DOD constituted acceptance of
applications of individuals from outside its own workforce, see Washburn v.
Department of the Air Force, 119 M.S.P.R. 265, ¶¶ 6-11 (2013) (concluding that
the Department of the Air Force and not DOD was the “agency” for purposes of
5 U.S.C. § 3304(f)(1)).
ORDER
We ORDER the agency to reconstruct the hiring process for the Project
Manager position at issue, and to consider the appellant’s application in that
process. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir.
1984). The agency must complete this action no later than 30 days after the date
of this decision.
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 has
taken 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).
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
7
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).
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 forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
3
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 notice, the
Board cannot advise which option is most appropriate in any matter.
8
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).
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 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
9
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
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
10
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
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. 4 The court of appeals must receive your petition for
4
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
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.