Morris v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DENNIS K. MORRIS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
2012-3131
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF3443090296-B-1.
__________________________
Decided: August 14, 2012
__________________________
DENNIS K. MORRIS, Honolulu, Hawaii, pro se.
MICHAEL N. O’CONNELL, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director.
__________________________
DENNIS MORRIS v. ARMY 2
Before RADER, Chief Judge, PROST and REYNA, Circuit
Judges.
PER CURIAM.
Petitioner Dennis K. Morris appeals the decision of
the Merit Systems Protection Board (“Board”) denying his
request for corrective against the Department of the Army
(“Agency”). For the reasons set forth below, we affirm.
I. BACKGROUND
The Agency filled a Supervisory Operations Officer
(“SOO”) position by hiring a 30% disabled preference-
eligible veteran without advertising the position with a
vacancy announcement, relying on the Veterans Recruit-
ment Appointment (“VRA”) authority provided by 38
U.S.C. § 4214. The SOO position had initially been
classified as a YC-02, which is not eligible for non-
competitive VRA appointment, but the Agency later re-
classified it as a YA-02 after hiring the veteran.
Mr. Morris, a non-preference eligible (“NPE”) veteran,
appealed to the Board, contending that the Agency vio-
lated his rights under the Veterans Employment Oppor-
tunities Act (“VEOA”), 5 U.S.C. § 3304(f)(1). Under the
VEOA, certain veterans “may not be denied the opportu-
nity to compete for vacant positions for which the agency
making the announcement will accept applications from
individuals outside its own workforce under merit promo-
tion procedures.” 5 U.S.C. § 3304(f)(1). Specifically, Mr.
Morris argued that the Agency improperly relied on the
VRA to appoint an individual from outside its workforce
without allowing preference-eligible and NPE veterans,
such as himself, to apply for the position. According to
Mr. Morris, the VRA did not apply because the SOO
3 DENNIS MORRIS v. ARMY
position was classified as a YC-02, which is not eligible for
a non-competitive VRA appointment.
The administrative judge issued an initial decision
denying Mr. Morris’s request for corrective action. Morris
v. Dep’t of the Army, No. SF3443090296-B-1 (M.S.P.B.
June 15, 2011) (“Initial Decision”). The administrative
judge found that a YA-02 position was equivalent to a GS-
11 position and was subject to the VRA. Initial Decision
8. He accordingly determined that the Agency was not
required to issue a vacancy announcement to fill the
position. Id. at 10. Mr. Morris, therefore, did not have a
right to compete for the position under the VEOA. Id. at
11. The Board denied Mr. Morris’s petition for review,
Morris v. Dep’t of the Army, No. SF3443090296-B-1
(M.S.P.B. Mar. 22, 2012) (“Final Decision”), and the
initial decision accordingly became the decision of the
Board. Mr. Morris has appealed, and we have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We must affirm a Board decision unless it is (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c).
On appeal, Mr. Morris argues that we should reverse
the Board’s decision because the Agency improperly relied
on VRA appointment authority to fill a YC-02 position
and then re-classified the position as a YA-02 after the job
had been offered to the veteran. We are not persuaded
that a reversal is warranted.
DENNIS MORRIS v. ARMY 4
The VRA authority provides for appointment of quali-
fied, covered veterans for positions up to and including
the GS-11 level or its equivalent. 38 U.S.C.
§ 4214(b)(1)(A). Mr. Morris does not dispute that a YA-02
position is equivalent to a GS-11 position and is covered
by the VRA. Nor does he dispute that an agency can rely
on VRA appointment authority to fill a YA-02 position
without issuing a vacancy announcement. Here, the
Agency originally classified the position as a YC-02—
which is not subject to the VRA—but, within two weeks of
the commencement of the veteran’s employment, re-
classified the position as a YA-02. It is well-established
“that an agency has the inherent power to reconsider and
change a decision if it does so within a reasonable period
of time.” Gratehouse v. United States, 512 F.2d 1104,
1109 (Ct. Cl. 1975). In this case, the Board found that the
Agency’s correction of this classification error occurred
within a reasonable period of time. Final Decision 4.
Given the deference we afford to the Board, we see no
reason to disturb this factual finding. Further, to the
extent that Mr. Morris argues that the Agency improperly
changed the position from a YC-02 to a YA-02, “the Board
and this court have no jurisdiction to review or revise an
agency’s job classification.” Hogan v. Dep’t of the Navy,
218 F.3d 1361, 1366 (Fed. Cir. 2000). We, therefore,
agree with the Board that Mr. Morris has failed to prove
that the Agency violated his rights under the VEOA.
Mr. Morris’s remaining arguments do not support a
different result. Consequently, for the reasons set forth
above, the decision of the Board is affirmed.
5 DENNIS MORRIS v. ARMY
COSTS
Each party shall bear its own costs.
AFFIRMED