Kimberly Carter v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY CARTER, DOCKET NUMBER
Appellant, DA-3443-18-0467-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 2, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kimberly Carter , APO, pro se.
Anna Virdell , Esquire, Fort Sam Houston, Texas, 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 initial decision, which
dismissed this appeal of her nonselection for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
expressly MODIFIED to find that the Board lacks jurisdiction over the appeal
under the Veterans Employment Opportunities Act of 1998 (VEOA) and to
further address the appellant’s employment practices claim, we AFFIRM the
initial decision.
BACKGROUND
The appellant, a GS-14 Lead IT Specialist at Fort Sam Houston, Texas,
applied for agency Job Announcement No. NCFR166956791844026, GS-14 Lead
IT Specialist, at the same location. Initial Appeal File (IAF), Tab 1 at 1, 7-11.
The position was open to all U.S. citizens. Id. at 7. The agency listed her on the
certificate for the position, but did not select her, and instead used its direct
hiring authority (DHA), which it received from the Office of Personnel
Management (OPM), to fill the position. Id. at 15, 23, 27-28.
The appellant filed an appeal with the Board, asserting that she learned of
her nonselection on July 30, 2017. Id. at 5. She requested a hearing. Id. at 2. In
addition to the usual acknowledgment order, the administrative judge issued a
timeliness order. IAF, Tabs 2-3. In the timeliness order, she noted that the filing
period in this case began on July 30, 2017, and that the appellant’s August 1,
2018 filing date appeared to be 337 days late. IAF, Tab 1, Tab 3 at 2. She
ordered the appellant to file evidence and argument that she had filed the appeal
on time or that good cause existed for the delay. IAF, Tab 3 at 3-4. The
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appellant responded that she filed her appeal within 30 days of the date she
received her final Freedom of Information Act response from the agency. IAF,
Tab 1, Tab 8 at 3, 19.
After considering the parties’ responses, the administrative judge issued an
initial decision based on the written record, dismissing the appeal for lack of
jurisdiction without holding a hearing. IAF, Tab 13, Initial Decision (ID). She
made no findings concerning the timeliness of the appeal. ID at 6 n.7. In the
initial decision, the administrative judge reviewed the potential bases of
jurisdiction that are available to appeal a nonselection, and found that the
appellant failed to make a nonfrivolous allegation of jurisdiction over her appeal.
ID at 3-9.
First, the administrative judge determined that the appellant had not
alleged, and the record did not show, that her nonselection was the result of a
suitability action under 5 C.F.R. part 731. ID at 4. She then found that the
appellant did not allege that the agency failed to select her in retaliation for
making a protected disclosure under 5 U.S.C. § 2302(b)(8) or for engaging in
protected activity under 5 U.S.C. § 2302(b)(9). ID at 5. The administrative judge
also found that the appellant did not allege that her nonselection was the product
of discrimination based on her uniformed service, or a violation of her veterans’
preference rights. Id. Lastly, the administrative judge rejected the appellant’s
employment practices claim and dismissed the appeal for lack of jurisdiction. ID
at 7-9.
In her petition for review, the appellant argues that the agency improperly
used DHA to pass over a preference eligible applicant. Petition for Review (PFR)
File, Tab 1 at 5. She argues that, because the agency did not request approval to
invoke DHA until after the job announcement closed, it improperly used that
authority as justification for passing over a preference eligible without following
the pass over regulations, thereby violating her veterans’ preference rights. Id.4
at 5-6. The agency has responded to the appellant’s petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not challenge the administrative judge’s findings that
the nonselection at issue did not involve a suitability action under 5 C.F.R.
part 731. She also does not challenge the findings that she did not allege that the
agency failed select her in retaliation for making a protected disclosure
under 5 U.S.C. § 2302(b)(8) or for engaging in protected activity under
5 U.S.C. § 2302(b)(9). Finally, she does not reassert her claim that the agency’s
evaluation of her education, experience, and application involved an employment
practice. We decline to disturb the administrative judge’s findings on these
issues.
The appellant still fails to establish jurisdiction over her employment practices
claim.
The appellant argued below that the use of DHA was a prohibited personnel
practice. IAF, Tab 1 at 5. The administrative judge did not make any findings on
this claim. However, her failure to do so was not harmful because prohibited
personnel practices are not an independent source of Board jurisdiction. See
Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012); see
also Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision). On review, the appellant
suggests that the agency’s use of its DHA was an employment practice. PFR File,
Tab 1 at 5. She contends that, because the job announcement did not indicate
that the agency would use DHA and the agency did not request approval to use
DHA until after the job announcement closed, it improperly used DHA as
justification for passing over a preference eligible without following the pass over
regulations, violating her veterans’ preference rights. Id. at 5-6.
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The issue of the Board’s jurisdiction can be raised at any time, including on
review. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016).
Therefore, we have addressed the appellant’s argument. The Board has
jurisdiction over an employment practices appeal when two conditions are met:
(1) the appeal must concern an employment practice that OPM is involved in
administering; and (2) the appellant must make a nonfrivolous allegation that the
employment practice violated one of the “basic requirements” for employment
practices set forth in 5 C.F.R. § 300.103. Sauser v. Department of Veterans
Affairs, 113 M.S.P.R. 403, ¶ 6 (2010). Those requirements consist of a job
analysis to identify the basic duties and responsibilities, knowledge, skills, and
abilities to perform them, and the factors that are important in evaluating
candidates; relevance between performance in the position and the employment
practice used; and equal employment opportunity with no prohibited forms of
discrimination. 5 C.F.R. § 300.103(a)-(c). An agency’s misapplication of a
valid OPM requirement, like DHA, may constitute an employment practice. See
Sauser, 113 M.S.P.R. 403, ¶ 7.
Because OPM gave the agency its DHA, it was involved in that
employment practice. IAF, Tab 1 at 27; PFR File, Tab 6 at 11-22; see Sauser,
113 M.S.P.R. 403, ¶ 7 (explaining that OPM need not be immediately involved in
the practice in question). However, it is well established that agencies have
discretion to fill vacancies by any authorized method. See Phillips v. Department
of the Navy, 110 M.S.P.R. 184, ¶ 6 (2008), overruled on other grounds by Oram
v. Department of the Navy, 2022 MSPB 30. OPM authorized the use of DHA on
June 20, 2003. PFR File, Tab 6 at 11-22. Under DHA, the agency may, without
regard to the provisions of 5 U.S.C. sections 3309 through 3318, appoint
candidates directly to positions for which (1) public notice has been given, and
(2) OPM has determined there is a severe shortage of candidates or a critical
hiring need. 5 U.S.C. § 3304(a)(3); PFR File, Tab 6 at 11-22. The appellant fails
to identify any authority that would indicate that the agency misapplied the
6
employment practice or otherwise improperly used its DHA. See Sauser,
113 M.S.P.R. 403, ¶ 7. Thus, the appellant failed to make a nonfrivolous
allegation of jurisdiction over the employment practice, i.e., the agency’s use of
DHA, which she alleged on review.
The appellant failed to establish jurisdiction under VEOA.
As noted above, the appellant argues on review that the agency’s use of
DHA violated her veterans’ preference rights by evading the procedures
necessary for an agency to pass over a preference eligible employee. PFR File,
Tab 1 at 5-6. The appellant alleged below that she was entitled to veterans’
preference. IAF, Tab 1 at 1. Because the record showed that she may have raised
a claim under VEOA, the Office of the Clerk of the Board issued an order
affording the appellant an opportunity to establish jurisdiction over her allegation
that the agency violated her veterans’ preference rights or her right to compete.
PFR File, Tab 1 at 5-7, Tab 4; IAF, Tab 1 at 2, 6. The appellant has responded to
the order, and the agency has replied to the appellant’s response. PFR File,
Tabs 5-6.
To establish jurisdiction over a VEOA appeal, as relevant here, an
appellant must show that she exhausted her administrative remedy with the
Department of Labor (DOL). 5 U.S.C. § 3330a(a)(1); Becker v. Department of
Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); Jarrard v. Social Security
Administration, 115 M.S.P.R. 397, ¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed. Cir.
2012). In her response to the jurisdictional order, the appellant asserts that she
did not file a complaint with DOL. PFR File, Tab 4 at 3. Evidence of the
exhaustion requirement is mandatory. 5 U.S.C. § 3330a(d); Graves v.
Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 8 (2012). Thus, the Board
lacks jurisdiction over the appellant’s VEOA appeal.
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NOTICE OF APPEAL RIGHTS 2
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
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:
2
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
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.
(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
9
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
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
10
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. 3 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3
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
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.