Dwayne L. Lester v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWAYNE L. LESTER, DOCKET NUMBER
Appellant, DC-3330-15-0378-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: March 2, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dwayne L. Lester, Laurel, Maryland, pro se.
Byron D. Smalley, Esquire, and Mark A. Wines, Esquire, Washington,
D.C., for the agency.
BEFORE
Susan Tsui Grundmann, 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 Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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, 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 by this Final Order to find that the
Board has jurisdiction over the appellant’s veterans’ preference appeal but not
over his claim that the agency denied his right to compete, we AFFIRM the initial
decision.
¶2 The agency posted a job announcement for a Printing Services Specialist
position and specifically limited applicants to “IRS employees on Career or
Career Conditional Appts in the competitive service.” Initial Appeal File (IAF),
Tab 1 at 27. The appellant filed a complaint with the Department of Labor (DOL)
in which he alleged that the agency violated his veterans’ preference rights by not
allowing him to apply or by finding him ineligible for the announced position
because he was not an agency employee. Id. at 19. DOL investigated the
appellant’s complaint but found that no violation occurred and informed him of
his right to appeal his case to the Board. Id.
¶3 The appellant filed an appeal with the Board arguing that the agency
violated his veterans’ preference rights because an “area of consideration is not
allowed for a veteran that is VEOA/preference eligible.” Id. at 4. He enclosed
with his appeal a letter from the DOL Veterans’ Employment and Training
Service dated January 8, 2015, concluding that the agency followed proper
procedures in posting its open position. Id. at 25-26. The administrative judge
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set forth the requirements for establishing the Board’s jurisdiction over a VEOA
claim alleging a violation of rights under any statute or regulation relating to
veterans’ preference and ordered the appellant to file a statement showing that the
Board has jurisdiction over his appeal. IAF, Tab 2 at 2-3.
¶4 The appellant failed to respond to the administrative judge’s order within
the specified time, and the agency argued that the administrative judge should
dismiss the appeal for lack of jurisdiction or deny the appellant’s request for
corrective action under VEOA. IAF, Tab 4 at 5-6. The agency stated that the job
announcement, limiting the area of consideration to agency employees, did not
violate the appellant’s rights under VEOA and that it had no record indicating
that the appellant applied for the position. Id. at 6. In response, the appellant
argued that the law requires the area of consideration to be available to all
preference-eligible veterans and that the agency did not let him apply for the
position. IAF, Tab 6 at 1. The appellant further argued that he applied for
several positions with the agency, and the agency had evidence that he was
qualified. Id. at 1.
¶5 After reviewing the parties’ written submissions, the administrative judge
denied the appellant’s request for corrective action under VEOA without holding
the requested hearing. IAF, Tab 8, Initial Decision (ID) at 1-3. The
administrative judge found that the appellant was fully informed of the
dispositive issues on appeal, and he had the opportunity to dispute the agency’s
evidence but he failed to provide any evidence or argument showing that the
agency’s vacancy announcement violated any statute or regulation relating to
veterans’ preference. ID at 2-3. The appellant filed a petition for review of the
initial decision. Petition for Review (PFR) File, Tab 1. The agency responded in
opposition to his petition, and the appellant replied. PFR File, Tabs 3-4.
4
The Board has no jurisdiction to consider the appellant’s claim that the agency
denied his right to compete in violation of 5 U.S.C. § 3304(f).
¶6 On review, the appellant argues that the agency violated his right to
compete under 5 U.S.C. § 3304(f). PFR File, Tabs 1, 4. Under VEOA, certain
veterans and preference eligibles “may not be denied the opportunity to compete
for vacant positions for which the agency making the announcement will accept
applications from individuals outside its own workforce under merit promotion
procedures.” 5 U.S.C. § 3304(f)(1); Abell v. Department of the Navy, 343 F.3d
1378, 1383 (Fed. Cir. 2003).
¶7 To establish Board jurisdiction over a “right to compete” appeal 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 action at issue took place on
or after the enactment date of the Veterans’ Benefits Improvement Act of 2004,
and (iii) the agency, in violation of 5 U.S.C. § 3304(f)(1), 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. Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5
(2010). Here, the appellant does not allege that the agency accepted applications
from individuals outside its own workforce and the record reflects that the job
announcement for the vacancy at issue was limited to agency employees only.
IAF, Tab 1 at 27. We therefore find that the appellant failed to make a
nonfrivolous allegation that the agency denied him the right to compete in
violation of 5 U.S.C. § 3304(f)(1), and the Board has no jurisdiction to consider
this issue.
The appellant established jurisdiction over his veterans’ preference appeal.
¶8 To establish Board jurisdiction over a veterans’ preference appeal brought
pursuant to 5 U.S.C. § 3330a(a)(1)(A), an appellant must: (1) show that he
exhausted his remedy with DOL; and (2) make nonfrivolous allegations that (i) he
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is a preference eligible within the meaning of VEOA, (ii) the action(s) at issue
took place on or after the 1998 enactment date of VEOA, and (iii) the agency
violated his rights under a statute or regulation relating to veterans’ preference.
Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
To prevail on the merits the appellant must prove these elements by preponderant
evidence. Isabella v. Department of State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007),
aff’d, 109 M.S.P.R. 453 (2008).
¶9 In denying the appellant’s request for corrective action based on his claim
that the agency’s vacancy announcement violated his rights as a
preference-eligible veteran, the administrative judge did not make an explicit
finding on the jurisdictional issue. We modify the initial decision to find that the
Board has jurisdiction over the appellant’s veterans’ preference appeal pursuant
to 5 U.S.C. § 3330a(a)(1)(A) for the reasons set forth below. First, we find that
the appellant proved that he exhausted his remedy with DOL. IAF, Tab 1 at
19-20. Second, we find that the appellant made a nonfrivolous allegation that he
is a preference-eligible veteran and that the agency announced the job vacancy at
issue after October 30, 1998. Id. at 21. Third, we find that the appellant’s
general allegation that the agency violated his veterans’ preference rights, by
limiting applicants for the announced vacancy to current agency employees and
not including all preference-eligible veterans, is sufficient to meet the
nonfrivolous standard. 2 See Lis v U.S. Postal Service, 113 M.S.P.R. 415, ¶ 9
(2010). We therefore find that the Board has jurisdiction over the appellant’s
VEOA claim alleging a violation of his veterans’ preference rights.
2
The appellant presumably did not apply for the position because he was not an agency
employee. IAF, Tab 1 at 25, Tab 6 at 1. To establish jurisdiction over his appeal,
however, the appellant is not required to make a nonfrivolous allegation that he applied
for the position at issue. See Weed v. Social Security Administration, 112 M.S.P.R.
323, ¶ 15 (2009).
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The appellant failed to prove that the agency violated his statutory or regulatory
veterans’ preference rights.
¶10 To be entitled to relief under VEOA, an appellant must show by a
preponderance of the evidence that the agency violated one or more of his
statutory or regulatory veterans’ preference rights. Dale v. Department of
Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). In denying the appellant’s
request for corrective action, the administrative judge found that the appellant did
not show that the agency denied his rights under VEOA by limiting the area of
consideration for the announced vacancy to agency employees and that the
agency’s action was not prohibited by law or regulation. ID at 4.
¶11 It is undisputed that the job announcement at issue was limited to agency
employees only, that an agency may fill a vacancy by any authorized method, and
that the appellant was not an agency employee. PFR File, Tab 1 at 2; IAF, Tab 1
at 6, 25, Tab 4 at 5; Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, ¶ 11
(2006), aff’d, 505 F.3d 1380 (Fed. Cir. 2007). The appellant’s claim that the
agency should have permitted all preference eligibles to apply for the announced
position is not cognizable under VEOA because the agency’s action does not
implicate a statute or regulation relating to veterans’ preference. PFR File, Tab 1
at 1; IAF, Tab 1 at 4. Because the appellant’s arguments on review present no
basis to disturb the initial decision, we deny the petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request review of this final decision by the U.S. 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
7
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 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
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.