Hector Soto v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HECTOR SOTO, DOCKET NUMBER
Appellant, AT-4324-13-0134-B-1
v.
DEPARTMENT OF VETERANS DATE: October 10, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Hector Soto, Riviera Beach, Florida, pro se.
Dana C. Heck, Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. See 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, and based on the following
points and authorities, 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). We FORWARD the appellant’s
claim regarding his nonselection for the position of Pathology Specialist to the
Atlanta Regional Office for docketing as a new USERRA appeal.
¶2 The agency appointed the appellant to the competitive service position of
Cytotechnologist, GS-11, Step 1, effective June 10, 2007. MSPB Docket No. AT-
4324-13-0134-I-1, Initial Appeal File (IAF I-1), Tab 5 at 6. Several years later,
the appellant filed a USERRA appeal with the Board, alleging that the agency
discriminated against him based on his veteran status because it failed to exercise
its discretion under 5 C.F.R. § 531.212 to appoint him at a step higher than
Step 1. IAF I-1, Tab 1. He requested a hearing. Id. at 2. The administrative
judge dismissed the appeal without holding a hearing, finding that the appellant
failed to make a nonfrivolous allegation of Board jurisdiction. IAF I-1, Tab 11.
¶3 The appellant filed a petition for review of the initial decision in Docket
No. AT-4324-13-0134-I-1. MSPB Docket No. AT-4324-13-0134-I-1, Petition for
Review File (PFR File I-1), Tab 1. The Board found that the appellant had
established Board jurisdiction over his USERRA appeal because he
nonfrivolously alleged that: (1) because he is a veteran, the agency denied him a
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benefit of employment by failing to appoint him at a step higher than Step 1,
despite his superior qualifications; and (2) the agency appointed a nonveteran of
equal grade, level, title, position and qualifications at a significantly higher step
than him. PFR File I-1, Tab 5; see IAF I-1, Tab 1 at 5-6. Accordingly, the Board
remanded the appeal with instructions for the administrative judge to conduct the
requested hearing. PFR File I-1, Tab 5.
¶4 On remand, after holding a hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action under
USERRA. MSPB Docket No. AT-4324-13-0134-B-1, Initial Appeal File (IAF
B-1), Tab 12, Initial Decision (ID). He found that the appellant failed to establish
by preponderant evidence that his veteran status was a motivating or substantial
factor in the agency’s failure to appoint him above the Step 1 level because:
(1) the agency’s hiring procedures and 5 C.F.R. § 531.211 require it to offer
positions to first-time civilian employees of the federal government at the Step 1
level, except under the limited circumstances set forth at 5 C.F.R. § 531.212;
(2) even when an exception exists that allows the agency to appoint such an
employee above the Step 1 level, the agency is not required to do so because this
authority is discretionary; (3) the agency appointed an individual at the Step 8
level but, consistent with its policy, only did so after that individual declined its
initial offer of appointment at the Step 1 level, and after it had attempted to fill
the position for almost 2 years without success; and (4) the appellant accepted the
offer of appointment at the Step 1 level outright, rather than attempting to bargain
for a higher salary. See ID. Based on the foregoing, the administrative judge
also found that even if the appellant had proved that his veteran status was a
motivating or substantial factor in his appointment at the Step 1 level, the agency
proved by preponderant evidence that it would have taken the same action even in
the absence of this protected status. See ID.¶5 The appellant has filed a petition for review of the remand initial decision,
which the agency opposes. MSPB Docket No. AT-4324-13-0134-B-1, Petition
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for Review File (PFR File B-1), Tab 1, Tab 3. The appellant does not identify
any error in the initial decision. Rather, he complains of his nonselection for a
Pathology Specialist position in July 2014, after the issuance of the remand initial
decision. PFR File B-1, Tab 1. He asserts that his nonselection for that position
was discriminatory and retaliatory, in violation of USERRA, “the
anti-discrimination laws,” and the agency’s equal employment opportunity (EEO)
policy. 2 Id. We will not consider these claims, which far exceed the scope of our
remand order. See Zelenka v. Office of Personnel
Management, 110 M.S.P.R. 205, ¶ 15 n.3 (2008) (refusing to address an
appellant’s arguments which exceeded the scope of the issues to be addressed on
remand), rev’d on other grounds, 361 F. A’ppx 138 (Fed. Cir. 2010).
Accordingly, we AFFIRM the initial decision.
¶6 Regarding the appellant’s nonselection, 3 because he appears to be raising a
new claim under USERRA—that he was not selected because of his military
status and/or because he previously exercised his right to file a USERRA
appeal—we FORWARD the matter to the Atlanta Regional Office for docketing
as a new appeal. As to his claims that his nonselection violated “the
anti-discrimination laws” and the agency’s EEO policy, we have already
explained that we lack authority to consider claims of prohibited discrimination
under 5 U.S.C. § 7702(a)(1) regarding actions that are not otherwise appealable to
the Board, such as nonselections. See Cruz v. Department of the Navy, 934 F.2d
2The appellant also suggests that his nonselection constitutes an “abuse of authority”
and that the agency retaliated against him for “identif[ying] a legitimate problem or
report[ing] what may be a violation of law, policy, or the VA core values.” PFR File
B-1, Tab 1 at 6-7. To the extent that the appellant wishes to file an individual right of
action appeal, he may refer to 5 U.S.C. § 1221 for guidance.
3
It is unclear whether the appellant was not selected for one or two positions. He
provided evidence that he was found eligible for Vacancy No. 1139351, but ineligible
for Vacancy No. 1161445. PFR File B-1, Tab 1 at 11-14. Both were for the position of
Pathology Specialist, GS-0601-12, in Florida. Id.5
1240, 1245-46 (Fed. Cir. 1991); see also Polen v. Department of
Defense, 72 M.S.P.R. 1, 4 (1996); PFR File I-1, Tab 5 at 3.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.