Pierson Goodman v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PIERSON B. GOODMAN, DOCKET NUMBER
Appellant, DC-3330-21-0318-M-1
v.
DEPARTMENT OF DEFENSE, DATE: May 1, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra D’Agostino , Esquire, Washington, D.C., for the appellant.
Sara K. Achinger , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA)
appeal as moot. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. However, for the reasons set forth
below, we VACATE the remand initial decision and DENY the appellant’s
request for corrective action.
BACKGROUND
On March 25, 2021, the appellant filed an appeal with the Board alleging
that the agency violated his veterans’ preference rights pursuant to VEOA when it
denied him the opportunity to compete for a vacancy open between November 19
and December 7, 2020, for which he had applied 2 despite his entitlement to
consideration based on his status as a preference eligible veteran. Goodman v.
Department of Defense, MSPB Docket No. DC-3330-21-0318-I-1, Initial Appeal
File (IAF), Tab 1 at 6, 9-10. Specifically, he asserted that the Department of
Defense improperly found him ineligible for the position because it erroneously
concluded that he failed to provide the requested documentation confirming his
veterans’ preference status. Id. at 6. He also indicated in his initial appeal that
he exhausted these claims with the Department of Labor (DOL), and he included
with his appeal a closing letter wherein DOL determined that he failed to show
that his veterans’ preference rights were violated. Id. at 6, 9-13, 34-35.
2
The vacancy announcement for which the appellant applied was OS-DTRA-21-
10969099-MP, a United Kingdom Combatant Command Representative position at the
GS-0301-14 and GS-0301-15 levels. IAF, Tab 4 at 8, Tab 6 at 21-29.
3
While the appellant’s initial appeal was pending with the administrative
judge, the agency voluntarily rescinded its job offer to the selectee and requested
that the entire vacancy announcement and selection process be reconstructed.
IAF, Tab 6 at 32. After reconvening the original hiring panel to rate all the
applicants on the new certificate of eligible applicants, which included the
appellant, the agency did not select the appellant for the position. Id. at 36. In a
pleading before the Board, the agency asserted that these actions divested the
Board of its jurisdiction over the appeal. Id. at 9.
Without providing the appellant with an opportunity to respond, the
administrative judge issued an initial decision finding that, because the agency
reconstructed the selection process and included the appellant on the certificate of
eligible applicants, it afforded him the appropriate remedy for a violation of his
veterans’ preference rights—the right to compete for the position. IAF, Tab 7,
Initial Decision (ID) at 5-7. Accordingly, she dismissed the appeal for lack of
jurisdiction. ID at 7. Thereafter, the appellant appealed the initial decision to the
U.S. Court of Appeals for the Federal Circuit. In an unopposed motion, the
Board requested that the Federal Circuit remand the matter so that the appellant
could respond to the agency’s argument and evidence regarding the reconstructed
selection process. Goodman v. Department of Defense, MSPB Docket No. DC-
3330-21-0318-L-1, Litigation File (LF), Tab 8. The court granted the motion and
remanded the appeal to the Board to allow the appellant to address the evidence
concerning the reconstructed selection process. LF, Tab 9.
Following remand to the Board, the administrative judge provided the
parties with an opportunity to address the reconstructed selection process and,
without holding a hearing, issued a remand initial decision on June 22, 2022,
dismissing the appeal as moot. 3 Goodman v. Department of Defense, MSPB
Docket No. DC-3330-21-0318-M-1, Remand File (RF), Tab 14, Remand Initial
3
The administrative judge who issued the remand initial decision was not the same
administrative judge who had previously handled the appeal. RF, Tab 9.
4
Decision (RID). In the remand initial decision, the administrative judge found
that the appellant’s arguments regarding the insufficiency of the reconstructed
selection process were without merit, and specifically, that the agency’s failure to
conduct new interviews “did not violate the appellant’s right to compete.” RID
at 4-5. Thus, she concluded that the appellant could not show that the agency
failed to correct its prior VEOA violation because the agency had considered the
appellant for the position at issue in its reconstructed selection process. 4 RID
at 6. Finally, she found that the appellant failed to prove that he was entitled to
an award of monetary or liquidated damages because he did not prove that he was
entitled to the position. RID at 3-4, 6.
The appellant has filed a petition for review of the remand initial decision,
arguing, among other things, that the reconstruction process was insufficient, and
that the agency’s failure to conduct interviews was not in line with the Board’s
decision in Schultz v. Department of Veterans Affairs, 2022 MSPB 23. Petition
for Review (PFR) File, Tab 3 at 13-16. In response, the agency argues that, in
accordance with Oram v. Department of the Navy, 2022 MSPB 30, the appellant
was not entitled to corrective action under 5 U.S.C. § 3304(f) as a matter of law
because he was a civilian Federal employee in the competitive service at the time
he applied for the vacancy. PFR File, Tab 5 at 4-5. The appellant did not reply
to the agency’s response.
4
Although the administrative judge refers to the agency’s “previous VEOA violation”
in her remand initial decision, RID at 6, neither DOL, nor the Board, nor the Federal
Circuit issued a finding that the agency violated the appellant’s veterans’ preference
rights. IAF, Tab 1 at 34-35, Tab 7; LF, Tab 9. However, because the agency rescinded
its offer and reconstructed the selection process, it appears that the administrative judge
assumed that there had been a VEOA violation. Because this assumption does not
impact the outcome of this matter, we do not address it. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
5
DISCUSSION OF ARGUMENTS ON REVIEW
Section 3304(f)(1) of Title 5 of the U.S. Code expressly provides
preference eligibles with a right to compete for vacant positions when the agency
issuing the vacancy announcement indicates that it will accept applications from
outside its own workforce. Harellson v. U.S. Postal Service, 113 M.S.P.R. 534,
¶ 8 (2010). However, in Oram, 2022 MSPB 30, ¶ 17, the Board found that, as a
matter of law, individuals who are already Federal employees are not entitled to
corrective action based on a claim of denial of an opportunity to compete under
5 U.S.C. § 3304(f).
In reaching that result, the Board relied on the decision of the Federal
Circuit in Kerner v. Department of the Interior, 778 F.3d 1336, 1338-39 (Fed.
Cir. 2015). There, the court found that, because the appellant was already
employed in the Federal civil service, 5 U.S.C. § 3304(f)(1) was inapplicable in
his case. After reviewing the text and legislative history of VEOA and its
precursor, the Veterans’ Preference Act, the Federal Circuit concluded that
nothing in the statutory language, the legislative history, or case law supports a
presumption that the “opportunity to compete” provisions in section 3304 apply
in instances in which an applicant already was employed by the Federal civil
service, but rather that the intent of those provisions was to assist veterans in
obtaining an initial appointment to the Federal service—not subsequent
promotions or other intra-agency movement. Kerner, 778 F.3d at 1338. The
court further reasoned that, because veterans currently employed in a
competitive-service position are already “eligible to apply” to merit promotion
vacancies, such applicants could not have been the intended beneficiaries of
section 3304(f). Id.Here, it appears that the appellant was a Federal employee at the time that
he applied for the position at issue. First, according to the appellant’s Certificate
of Release or Discharge From Active Duty, he was discharged on February 1,
2015. IAF, Tab 1 at 21. Then, as part of the appellant’s February 8, 2021 DOL
6
complaint, he attached a Standard Form 50 “reflecting his current position” as a
Supervisory Intelligence Specialist with the Department of the Army, with a pay
grade of GG-14. Id. at 9-10, 23. Furthermore, the appellant, who is represented
by counsel, did not respond to the agency’s assertions that he was already a
Federal employee in the competitive service at the time he applied, PFR File,
Tab 5, even though the Board’s regulations allowed him an opportunity to reply, 5
5 C.F.R. § 1201.114(a)(4).
Accordingly, we conclude that, at the time the appellant applied for the
position at issue in this appeal, he was a Federal employee in the civil service.
Therefore, he cannot prevail as a matter of law on his argument that he was
denied the opportunity to compete under 5 U.S.C. § 3304(f). See Oram,
2022 MSPB 30, ¶ 17. For this reason, we need not address the appellant’s
arguments below and on review regarding the sufficiency of the reconstructed
selection process. Furthermore, we vacate the remand initial decision dismissing
this appeal as moot, and deny the appellant’s request for corrective action,
finding that he cannot prevail as a matter of law.
NOTICE OF APPEAL RIGHTS 6
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
5
The appellant was notified of his right to reply to the agency’s response to his petition
for review in the acknowledgment letter issued by the Office of the Clerk of the Board.
PFR File, Tab 4 at 1.
6
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.
7
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).
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
8
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
9
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. 7 The court of appeals must receive your petition for
7
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.
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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.
11
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.